the treaty of the european union the maastricht treaty, th february, . contributed by neil mclachlan, nmclachlan@delphi.com note: in the contents section, the short upper case heading of each chapter can be searched for, to jump to that chapter. contents heads introduction of signatories title common provisions title provisions amending the treaty establishing the european ecomonic community with a view to establishing the european community title provisions amending the treaty establishing the european coal and steel community title provisions amending the treaty establishing the european atomic energy community title provisions on a common foreign & security policy title provisions on cooperation in the fields of justice & home affairs title final provisions protoco protocols final final act may _ declaration on protocol no. , made on the st may heads treaty on european union his majesty the king of the belgians, her majesty the queen of denmark, the president of the federal republic of germany, the president of the hellenic republic, his majesty the king of spain, the president of the french republic, the president of ireland, the president of the italian republic, his royal highness the grand duke of luxembourg, her majesty the queen of the netherlands, the president of the portuguese republic, her majesty the queen of the united kingdom of great britain and northern ireland resolved to mark a new stage in the process of european integration undertaken with the establishment of the european communities, recalling the historic importance of the ending of the division of the european continent and the need to create firm bases for the construction of the future europe, confirming their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law, desiring to deepen the solidarity between their peoples while respecting their history, their culture and their traditions, desiring to enhance further the democratic and efficient functioning of the institutions so as to enable them better to carry out, within a single institutional framework, the tasks entrusted to them, resolved to achieve the strengthening and the convergence of their economies and to establish an economic and monetary union including, in accordance with the provisions of this treaty, a single and stable currency, determined to promote economic and social progress for their peoples, within the context of the accomplishment of the internal market and of reinforced cohesion and environmental protection, and to implement policies ensuring that advances in economic integration are accompanied by parallel progress in other fields, resolved to establish a citizenship common to the nationals of their countries, resolved to implement a common foreign and security policy including the eventual framing of a common defence policy, which might in time lead to a common defence, thereby reinforcing the european identity and it independence in order to promote peace, security and progress in europe and in the world, reaffirming their objective to facilitate the free movement of persons while ensuring the safety and security of their peoples, by including provisions on justice and home affairs in this treaty, resolved to continue the process of creating an ever closer union among the peoples of europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity, in view of further steps to be taken in order to advance european integration, have decided to establish a european union and to this end have designated as their plenipotentiaries: his majesty the king of the belgians: mark eyskens, minister for foreign affairs; philippe maystadt, minister for finance; her majesty the queen of denmark: uffe ellemna-jensen, minister for foreign affairs; anders fogh rasmussen, minister for economic affairs; the president of the federal republic of germany: hans-dietrich genscher, federal minister for foreign affairs; theodor waigel, federal minister for finance; the president of the hellenic republic: antonios samaras, minister for foreign affairs; efthymios christodoulou, minister for economic affairs; his majesty the king of spain: francisco fernandez ordonez, minister for foreign affairs; carlos solchaga catalan, minister for economic affairs and finance; the president of the french republic: rolan dumas, minister for foreign affairs; peirre beregovy, minister for economic and financial affairs and the budget; the president of ireland: gerard collins, minister for foreign affairs; berite ahern, minister for finance; the president of the italian republic, gianni de michelis, minister for foreign affairs; guido carli, minister for the treasury; his royal highness the grand duke of luxembourg: jaques f. poos, deputy prime minister, minister for foreign affairs; jean-claude juncker, minister for finance; her majesty the queen of the netherlands: hans van den broek, minister for foreign affairs; willem kok, minister for finance; the president of the portuguese republic: joao de deus pinhero, minister for foreign affairs; jorge brag de macedo, minister for finance; her majesty the queen of the united kingdom of great britain and northern ireland: the rt. hon. douglas hurd, secretary of state for foreign and commonwealth affairs; the hon. francis maude, financial secretary to the treasury; who, having exchanged their full powers, found in good and due form, have agreed as follows: title common provisions article a by this treaty, the high contracting parties establish among themselves a european union, hereinafter called "the union". this treaty marks a new stage in the process of creating an ever closer union among the peoples of europe, in which decisions are taken as closely as possible to the citizen. the union shall be founded on the european communities, supplemented by the policies and forms of cooperation established by this treaty. its task shall be to organize, in a manner demonstrating consistency and solidarity, relations between the member states and between their peoples. article b the union shall set itself the following objectives: - to promote economic and social progress which is balanced and sustainable, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this treaty; - to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the eventual framing of a common defence policy, which might in time lead to a common defence; - to strengthen the protection of the rights and interests of the nationals of its member states through the introduction of a citizenship of the union; - to develop close cooperation on justice and home affairs; - to maintain in full the "acquis communautaire" and build on it with a view to considering, through the procedure referred to in article n( ), to what extent the policies and forms of cooperation introduced by this treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the community. the objectives of the union shall be achieved as provided in this treaty and in accordance with the condition and the timetable set out therein while respecting the principle of subsidiarity as defined in article b of the treaty establishing the european community. article c the union shall be served by a single institutional framework which shall ensure the consistency and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the "acquis communautaire". the union shall in particular ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies. the council and the commission shall be responsible for ensuring such consistency. they shall ensure the implementation of these policies, each in accordance with its respective powers. article d the european council shall provide the union with the necessary impetus for its development and shall define the general political guidelines thereof. the european council shall bring together the heads of state or of government of the member states and the president of the commission. they shall be assisted by the ministers for foreign affairs of the member states and by a member of the commission. the european council shall meet at least twice a year, under the chairmanship of the head of state or of government of the member state which holds the presidency of the council. the european council shall submit to the european parliament a report after each of its meetings and a yearly written report on the progress achieved by the union. article e the european parliament, the council, the commission and the court of justice shall exercise their powers under the conditions and for the purposes provided for, on the one hand, by the provisions of the treaties establishing the european communities and of the subsequent treaties and acts modifying and supplementing them and, on the other hand, by the other provisions of this treaty. article f . the union shall respect the national identities of its member states, whose systems of government are founded on the principles of democracy. . the union shall respect fundamental rights, as guaranteed by the european convention for the protection of human rights and fundamental freedoms signed in rome on november and as they result from the constitutional traditions common to the member states, as general principles of community law. . the union shall provide itself with the means necessary to attain its objectives and carry through its policies. title provisions amending the treaty establishing the european economic community with a view to establishing the european community article g the treaty establishing the european economic community shall be amended in accordance with the provisions of this article, in order to establish a european community. a. throughout the treaty: ) the term "european economic community" shall be replaced by the term "european community". b. in part one "principles": ) article shall be replaced by the following: "article the community shall have as its task, by establishing a common market and an economic and monetary union and by implementing the common policies or activities referred to in articles and a, to promote throughout the community a harmonious and balanced development of economic activities, sustainable and non-inflationary growth respecting the environment, a high degree of convergence of economic performance, a high level of employment and of social protection, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among member states.' ) article shall be replaced by the following: "article for the purposes set out in article , the activities of the community shall include, as provided in this treaty and in accordance with the timetable set out therein: (a) the elimination, as between member states, of customs duties and quantiative restrictions on the import and export of goods, and of all other measures having equivalent effect; (b) a common commercial policy; (c) an internal market characterized by the abolition, as between member states of obstacles to the free movement of goods, persons, services and capital; (d) measures concerning the entry and movement of persons in the internal market as provided for in article l c; (e) a common policy in the sphere of agriculture and fisheries; (f) a common policy in the sphere of transport; (g) a system ensuring that competition in the internal market is not distorted; (h) the approximation of the laws of member states to the extent required for the functioning of the common market; (i) a policy in the social sphere comprising a european social fund; (j) the strengthening of economic and social cohesion; (k) a policy in the sphere of the environment; (l) the strengthening of the competitiveness of community industry; (m) the pomotion of research and technological development; (n) encouragement for the establishment and development of trans- european networks; (o) a contribution to the attainment of a high level of health protection; (p) a contribution to education and training of quality and to the flowering of the cultures of the member states; (q) a policy in the sphere of development co-operation; (r) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development; (s) a contribution to the strengthening of consumer protection; (t) measures in the spheres of energy, civil protection and tourism." ) the following article shall be inserted: "article a . for the purposes set out in article , the activities of the member states and the community shall include, as provided in this treaty and in accordance with the timetable set out therein, the adoption of an economic policy which is based on the close co-ordination of member states' economic policies, on the internal market and on the definition of common objectives, and conducted in accordance with the principle of an open market economy with free competition. . concurrently with the foregoing, and as provided in this treaty and in accordance with the timetable and the procedures set out therein, these activities shall include the irrevocable fixing of exchange rates leading to the introduction of a single currency, the ecu, and the definition and conduct of a single monetary policy and exchange rate policy the primary objective of both of which shall be to maintain price stability and, without prejudice to this objective, to support the general economic policies in the community, in accordance with the principle of an open market economy with free competition. . these activities of the member states and the community shall entail compliance with the following guiding principles: stable prices, sound public finances and monetary conditions and a sustainable balance of payments." ) the following article shall be inserted: "article b the community shall act within the limit of the powers conferred upon it by this treaty and of the objectives assigned to it therein. in areas which do not fall within its exclusive competence, the community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the community. any action by the community shall not go beyond what is necessary to achieve the objectives of this treaty." ) article shall be replaced by the following: "article . the tasks entrusted to the community shall be carried out by the following institutions: - a european parliament, - a council, - a commission, - a court of justice, - a court of auditors. each institution shall act within the limits of the powers conferred upon it by this treaty. . the council and the commission shall be assisted by an economic and social committee and a committee of the regions acting in an advisory capacity." ) the following articles shall be inserted: "article a a european system of central banks (hereinafter referred to as "escb") and a european central bank (hereinafter referred to as "ecb") shall be established in accordance with the procedures laid down in this treaty; they shall act within the limits of the powers conferred upon them by this treaty and by the statute of the escb and of the ecb (hereinafter referred to as "statute of the escb") annexed thereto. article b a european investment bank is hereby established, which shall act within the limit of the powers conferred upon it by this treaty and the statute annexed thereto." ) article shall be deleted and article shall become article . its second paragraph shall be replaced by the following: "the council, acting in accordance with the procedure referred to in article c, may adopt rules designed to prohibit such discrimination." ) articles , a, b and c shall become respectively article , a, b and c. c. the following part shall be inserted: "part two citizenship of the union article . citizenship of the union is hereby established. every person holding the nationality of a member state shall be a citizen of the union. . citizens of the union shall enjoy the rights conferred by this treaty and shall be subject to the duties imposed thereby. article a . every citizen of the union shall have the right to move and reside freely within the territory of the member states, subject to the limitations and conditions laid down in this treaty and by the measures adopted to give it effect. . the council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph ; save as otherwise provided in this treaty, the council shall act unanimously on a proposal from the commission after obtaining the assent of the european parliament. article b . every citizen of the union residing in a member state of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the member state in which he resides, under the same conditions as nationals of that state. this right shall be exercised subject to detailed arrangements to be adopted before december by the council, acting unanimously, on a proposal from the commission and after consulting the european parliament; these arrangements may provide for derogations where warranted by problems specific to a member state. . without prejudice to article ( ) and to the provisions adopted for its implementation, every citizen of the union residing in a member state of which he is not a national shall have the right to vote and to stand as a candidate in elections to the european parliament in the member state in which he resides, under the same conditions as nationals of that state. this right shall be exercised subject to detailed arrangements to be adopted before december by the council, acting unanimously on a proposal from the commission and after consulting the european parliament; these arrangements may provide for derogations where warranted by problems specific to a member state. article c every citizen of the union shall, in the territory of a third country in which the member state of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any member state, on the same conditions as the nationals of that state. before december , member states shall establish the necessary rules among themselves and start the international negotiations required to secure this protection. article d every citizen of the union shall have the right to petition the european parliament in accordance with article d. every citizen of the union may apply to the ombudsman established in accordance with article e. article e the commission shall report to the european parliament, to the council and to the economic and social committee before december and then every three years on the application of the provisions of this part. this report shall take account of the development of the union. on this basis, and without prejudice to the other provisions of this treaty, the council, acting unanimously on a proposal from the commission and after consulting the european parliament, may adopt provisions to strengthen or to add to the rights laid down in this part, which it shall recommend to the member states for adoption in accordance with their respective constitutional requirements." d. parts two and three shall be grouped under the following title: "part three community policies" and in this part: ) the first sentence of article shall be replaced by the following: "as soon as this treaty enters into force, the council shall, acting in accordance with the procedure referred to in article b and after consulting the economic and social committee, issue directives or make regulations setting out the measures required to bring about, by progressive stages, freedom of movement for workers, as defined in article , in particular." ) article ( ) shall be replaced by the following: " . in order to implement this general programme or, in the absence of such programme, in order to achieve a stage in attaining freedom of establishment as regards a particular activity, the council, acting in accordance with the procedure referred to in article b and after consulting the economic and social committee, shall act by means of directives." ) article ( ) shall be replaced by the following: " . before the end of the transitional period, the council shall, acting unanimously on a proposal from the commission and after consulting the european parliament, issue directives for the co-ordination of the above mentioned provisions laid down by law, regulation or administrative action. after the end of the second stage, however, the council shall, acting in accordance with the procedure referred to in article b, issue directives for the co-ordination of such provisions as, in each member state, are a matter for regulation or administrative action." ) article shall be replaced by the following: "article . in order to make it easier for persons to take up and pursue activities as self-employed persons, the council shall, acting in accordance with the procedure referred to in article b, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications. . for the same purpose, the council shall, before the end of the transitional period, issue directives for the co-ordination of the provisions laid down by law, regulation or administrative action in member states concerning the taking up and pursuit of activities as self-employed persons. the council, acting unanimously on a proposal from the commission and after consulting the european parliament, shall decide on directives the implementation of which involves in at least one member state amendment of the existing principles laid down by law governing the professions with respect to training and conditions of access for natural persons. in other cases the council shall act in accordance with the procedure referred to in article b. . in the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon co-ordination of the conditions for their exercise in the various member states." ) the title of chapter shall be replaced by the following: "chapter capital and payments" ) the following articles shall be inserted: "article a as from january , articles to shall be replaced by articles b, c, d, e, f and g. article b . within the framework of the provisions set out in this chapter, all restrictions on the movement of capital between member states and between member states and third countries shall be prohibited. . within the framework of the provisions set out in this chapter, all restrictions on payments between member states and between member states and third countries shall be prohibited. article c . the provisions of article b shall be without prejudice to the application to third countries, of any restrictions which exist on december under national or community law adopted in respect of the movement of capital to or from third countries involving direct investment - including investment in real estate - establishment, the provision of financial services or the admission of securities to capital markets. . whilst endeavouring to achieve the objective of free movement of capital between member states and third countries to the greatest extent possible and without prejudice to the other chapters of this treaty, the council may, acting by a qualified majority on a proposal from the commission, adopt measures on the movement of capital to or from third countries involving direct investment - including investment in real estate -, establishment, the provision of financial services or the admission of securities to capital markets. unanimity shall be required for measures under this paragraph which constitute a step back in community law as regards the liberalization of the movement of capital to or from third countries. article d . the provisions of article b shall be without prejudice to the right of member states: (a) to apply the relevant provision of their tax law which distinguish between tax-payers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested; (b) to take all requisite measures to prevent infringement of national law and regulations, in particular in the field taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security. . the provisions of this chapter shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with this treaty. . the measures and procedures referred to in paragraphs and shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in article b. article e by way of derogation from article b, member states which, on december , enjoy a derogation on the basis of existing community law, shall be entitled to maintain, until december at the latest, restrictions on movement of capital authorized by such derogations as exist on that date. article f where, in exceptional circumstances, movement of capital to or from third countries cause, or threaten to cause, serious difficulties for the operation of economic and monetary union, the council, acting by a qualified majority on a proposal from the commission and after consulting the ecb, may take safeguard measures with regard to third countries for a period not exceeding six months if such measures are strictly necessary. article g . if, in the cases envisaged in article a, action by the community is deemed necessary, the council may, in accordance with the procedure provided for in article a, take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned. . without prejudice to article and as long as the council has not taken measures pursuant to paragraph , a member state may, for serious political reasons and on grounds of urgency, take unilateral measures against a third country with regard to capital movements and payments. the commission and the other member states shall be informed of such measures by the date of their entry into force at the latest. the council may, acting by a qualified majority on a proposal from the commission, decide that the member state concerned shall amend or abolish such measures. the president of the council shall inform the european parliament of any such decision taken by the council. article h until january , the following provisions shall be applicable: ) each member state undertakes to authorize, in the currency of the member state in which the creditor or the beneficiary resides, any payment connected with the movement of goods, services or capital, and any transfers of capital and earnings, to the extent that the movement of goods, services, capital and persons between member states has been liberalized pursuant to this treaty. the member states declare their readiness to undertake the liberalization of payments beyond the extent provided in the preceding subparagraph, in so far as their economic situation in general and the state of their balance of payment in particular so permit. ) in so far as movement of goods, services and capital are limited only by restrictions on payments connected therewith, these restrictions shall be progressively abolished by applying, mutatis mutandis, the provisions of this chapter and the chapters relating to the abolition of qualitative restrictions and to the liberalization of services. ) member states undertake not to introduce between themselves any new restrictions on transfers connected with the invisible transactions listed in annex iii to this treaty. the progressive abolition of existing restrictions shall be effected in accordance with the provisions of articles to , in so far as such abolition is not governed by the provisions contained in paragraphs and or by the other provisions of this chapter. ) if need be, member states shall consult each other on the measures to be taken to enable the payment and transfers mentioned in this article to be effected; such measures shall not prejudice the attainment of the objectives set out in this treaty." ) article shall be replaced by the following: "article . for the purpose of implementing article , and taking into account the distinctive features of transport, the council shall, acting in accordance with the procedure referred to in article c and after consulting the economic and social committee, lay down: (a) common rules applicable to international transport to or from the territory of a member state or passing across the territory of one or more member states; (b) the conditions under which non-resident carriers may operate transport services within a member state; (c) measures to improve transport safety; (d) any other appropriate provisions. . the provisions referred to in (a) and (b) of paragraph shall be laid down during the transitional period. . by way of derogation from the procedure provided for in paragraph , where the application of provisions concerning the principles of the regulatory system for transport would be liable to have a serious effect on the standard of living and on employment in certain areas and on the operation of transport facilities, they shall be laid down by the council acting unanimously on a proposal from the commission, after consulting the european parliament and the economic and social committee. in so doing, the council shall take into account the need for adaptation to the economic development which will result from establishing the common market." ) the title of title i in part three shall be replaced by, the following: "title v common rules on competition and approximation of laws" ) in article ( ): - the following point shall be inserted: "(d) aid to promote culture and heritage conservation where such aid does not affect trading conditions and competition in the community to an extent that is contrary to the common interest." - the present point (d) shall become (e). ) article shall be replaced by the following: "article the council, acting by a qualified majority on a proposal from the commission and after consulting the european parliament, may make any appropriate regulations for the application of articles and and may in particular determine the conditions in which article ( ) shall apply and the categories of aid exempted from this procedure." ) article shall be replaced by the following: "article the council shall, acting unanimously on a proposal from the commission and after consulting the european parliament and the economic and social committee, adopt provisions for the harmonization of legislation concerning turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonization is necessary to ensure the establishment and the functioning of the internal market within the time limit laid down in article a." ) article shall be replaced by the following: "article the council shall, acting unanimously on a proposal from the commission and after consulting the european parliament and the economic and social committee, issue directives for the approximation of such laws, regulations or administrative provisions of the member states as directly affects the establishment or functioning of the common market." ) article l a( ) shall be replaced by the following: " . by way of derogation from article and save where otherwise provided in this treaty, the following provisions shall apply for the achievement of the objectives set out in article a. the council shall, acting in accordance with the procedure referred to in article b and after consulting the economic and social committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in member states which have as their object the establishment and functioning of the internal market." ) the following article shall be inserted: "article l c . the council, acting unanimously on a proposal from the commission and after consulting the european parliament, shall determine the third countries whose nationals must be in possession of a visa when crossing the external borders of the member states. . however, in the event of an emergency situation in a third country posing a threat of a sudden inflow of nationals from that country into the community, the council, acting by a qualified majority on a recommendation from the commission, may introduce, for a period not exceeding six months, a visa requirement for nationals from the country in question. the visa requirement established under this paragraph may be extended in accordance with the procedure referred to in paragraph . . from january , the council shall adopt the decisions referred to in paragraph by a qualified majority. the council shall, before that date, acting by a qualified majority on a proposal from the commission and after consulting the european parliament, adopt measures relating to a uniform format for visas. . in the areas referred to in this article, the commission shall examine any request made by a member state that it submit a proposal to the council. . this article shall be without prejudice to the exercise of the responsibilities incumbent upon the member states with regard to the maintenance of law and order and the safeguarding of internal security. . this article shall apply to other areas if so decided pursuant to article k. of the provisions of the treaty on european union which relate to co-operation in the fields of justice and home affairs, subject to the voting conditions determined at the same time. . the provisions of the conventions in force between the member states governing areas covered by this article shall remain in force until their content has been replaced by directives or measures adopted pursuant to this article." ) the following article shall be inserted: "article l d the co-ordinating committee consisting of senior officials set up by article k. of the treaty on european union shall contribute, without prejudice to the provisions of article , to the preparation of the proceedings of the council in the fields referred to in article l c." ) title ii, chapters , and in part three shall be replaced by the following: "title vi economic and monetary policy chapter economic policy article a member states shall conduct their economic policies with a view to contributing to the achievement of the objectives of the community, as defined in article , and in the context of the broad guidelines referred to in article ( ). the member states and the community shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principle set out in article a. article . member states shall regard their economic policies as a matter of common concern and shall co-ordinate them within the council, in accordance with the provisions of article a. . the council shall, acting by a qualified majority on a recommendation from the commission, formulate a draft for the broad guidelines of the economic policies of the member states and of the community, and shall report its findings to the european council. the european council shall, acting on the basis of the report from the council, discuss a conclusion on the broad guidelines of the economic policies of the member states and of the community. on the basis of this conclusion, the council shall, acting by a qualified majority, adopt a recommendation setting out these broad guidelines. the council shall inform the european parliament of its recommendation. . in order to ensure closer co-ordination of economic policies and sustained convergence of the economic performances of the member states, the council shall, on the basis of reports submitted by the commission, monitor economic development in each of the member states and in the community as well as the consistency of economic policies with the broad guidelines referred to in paragraph , and regularly carry out an overall assessment. for the purpose of this multilateral surveillance, member states shall forward information to the commission about important measures taken by them in the field of their economic policy and other information as they deem necessary. . where it is established, under the procedure referred in paragraph , that the economic policies of a member state are not consistent with the broad guidelines referred to in paragraph or that they risk jeopardizing the proper functioning of economic and monetary union, the council may, acting by a qualified majority on a recommendation from the commission, make the necessary recommendations to the member state concerned. the council may, acting by a qualified majority on a proposal from the commission, decide to make its recommendations public. the president of the council and the commission shall report to the european parliament on the result of multilateral surveillance. the president of the council may be invited to appear before the competent committee of the european parliament if the council has made its recommendations public. . the council, acting in accordance with the procedure referred to in article c, may adopt detailed rules for the multilateral surveillance procedure referred to in paragraphs and of this article. article a . without prejudice to any other procedures provided for in this treaty, the council may, acting unanimously on a proposal from the commission, decide upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products. . where a member state is in difficulties or is seriously threatened with severe difficulties caused by exceptional occurrences beyond its control, the council may, acting unanimously on a proposal from the commission, grant, under certain conditions, community financial assistance to the member state concerned. where the severe difficulties are caused by natural disasters, the council shall act by qualified majority. the president of the council shall inform the european parliament of the decision taken. article . overdraft facilities or any other type of credit facility with the ecb or with the central banks of the member states (hereinafter referred to as "national central banks") in favour of community institutions or bodies, central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of member states shall be prohibited, as shall the purchase directly from them by the ecb or national central banks of debt instruments. . paragraph shall not apply to publicly-owned credit institutions which, in the context of the supply of reserves by central banks, shall be given the same treatment by national central banks and the ecb as private credit institutions. article a . any measure, not based on prudential considerations, establishing privileged access by community institutions or bodies, central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of member states to financial institutions shall be prohibited. . the council, acting in accordance with the procedure referred to in article c, shall, before january , specify definitions for the application of the prohibition referred to in paragraph . article b . the community shall not be liable for or assume the commitments of central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of any member state, without prejudice to mutual financial guarantees for the joint execution of a specific project. a member state shall not be liable for or assume the commitment of central governments, regional, local or other public authorities, other bodies governed by public law or public undertakings of another member state, without prejudice to mutual financial guarantees for the joint execution of a specific project. . if necessary, the council, acting in accordance with the procedure referred to in article c, may specify definitions for the application of the prohibitions referred to in article and in this article. article c . member states shall avoid excessive governmental deficits. . the commission shall monitor the development of the budgetary situation and of the stock of government debt in the member states with a view to identifying gross errors. in particular it shall examine compliance with budgetary discipline on the basis of the following two criteria: (a) whether the ratio of the planned or actual government deficit to gross domestic product exceeds a reference value, unless - either the ratio has declined substantially and continuously and reached a level that comes close to the reference value; - or, alternatively, the excess over the reference value is only exceptional and temporary and the ratio remains close to the reference value; (b) whether the ratio of government debt to gross domestic product exceeds a reference value, unless the ratio is sufficiently diminishing and approaching the reference value at a satisfactory pace. the reference values are specified in the protocol on the excessive deficit procedure annexed to this treaty. . if a member state does not fulfil the requirements under one or both of these criteria, the commission shall prepare a report. the report of the commission shall also take into account whether the government deficit exceeds government investment expenditure and take into account all other relevant factors, including the medium term economic and budgetary position of the member state. the commission may also prepare a report if, notwithstanding the fulfillment of the requirement under the criteria, it is of the opinion that there is a risk of an excessive deficit in a member state. . the committee provided for in article c shall formulate an opinion on the report of the commission. . if the commission considers that an excessive deficit in a member state exists or may occur, the commission shall address an opinion to the council. . the council shall, acting by a qualified majority on a recommendation from the commission, and having considered any observations which the member state concerned may wish to make, decide after an overall assessment whether an excessive deficit exists. . where the existence of an excessive deficit is decided according to paragraph , the council shall make recommendations to the member state concerned with a view to bringing that situation to an end within a given period. subject to the provisions of paragraph , these recommendations shall not be made public. . where it establishes that there has been no effective action in response to its recommendations within the period laid down, the council may make its recommendations public. . if a member state persists in failing to put into practice the recommendations of the council, the council may decide to give notice to the member state to take, within a specified time limit, measures for the deficit reduction which is judged necessary by the council in order to remedy the situation. in such a case, the council may request the member state concerned to submit reports in accordance with a specific timetable in order to examine the adjustment efforts of that member state. . the right to bring actions provided for in articles and may not be exercised within the framework of paragraphs to of this article. . as long as a member state fails to comply with a decision taken in accordance with paragraph , the council may decide to apply the following measures: - to require the member state concerned to publish additional information, to be specified by the council, before issuing bonds and securities; - to invite the european investment bank to reconsider its lending policy towards the member state concerned; - to require the member state concerned to make a non-interest- bearing deposit of an appropriate size with the community until the excessive deficit has, in the view of the council, been corrected; - to impose fines of an appropriate size. the president of the council shall inform the european parliament of the decisions taken. . the council shall abrogate some or all of its decisions referred to in paragraphs to and to the extent that the excessive deficit in the member state concerned has, in the view of the council, been corrected. if the council has previously made public recommendations, it shall, as soon as the decision under paragraph has been abrogated, make a public statement that an excessive deficit in the member state concerned no longer exists. . when taking the decisions referred to in paragraphs to , and , the council shall act on a recommendation from the commission by a majority of two thirds of the votes of its members weighted in accordance with article ( ), excluding the votes of the representative of the member state concerned. . further provisions relating to the implementation of the procedure described in this article are set out in the protocol on the excessive deficit procedure annexed to this treaty. the council shall, acting unanimously on a proposal from the commission and after consulting the european parliament and the ecb, adopt the appropriate provisions which shall then replace the said protocol. subject to the other provisions of this paragraph the council shall, before january , acting by a qualified majority on a proposal from the commission and after consulting the european parliament, lay down detailed rules and definitions for the application of the provisions of the said protocol. chapter monetary policy article . the primary objective of the escb shall be to maintain price stability. without prejudice to the objective of price stabilty, the escb shall support the general economic policies in the community with a view to contributing to the achievement of the objectives of the community as laid down in article . the escb shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in article a. . the basic tasks to be carried out through the escb shall be: - to define and implement the monetary policy of the community; - to conduct foreign exchange operations consistent with the provisions of article ; - to hold and manage the official foreign reserves of the member states; - to promote the smooth operation of payment systems. . the third indent of paragraph shall be without prejudice to the holding and management by the government of member states of foreign exchange working balances. . the ecb shall be consulted: - on any proposed community act in its fields of competence; - by national authorities regarding any draft legislative provision in its fields of competence, but within the limits and under the conditions set out by the council in accordances with the procedure laid down in article ( ). the ecb may submit opinions to the appropriate community institutions or bodies or to national authorities on matters in its fields of competence. . the escb shall contribute to the smooth conduct of policies pursued by the competent authorities relating to the prudential supervision of credit institutions and the stability of the financial system. . the council may, acting unanimously on a proposal from the commission and after consulting the ecb and after receiving the assent of the european parliament, confer upon the ecb specific tasks concerning policies relating to the prudential supervision of credit institutions and other financial institutions with the exception of insurance undertakings. article a . the ecb shall have the exclusive right to authorize the issue of bank note within the community. the ecb and the national central banks may issue such notes. the bank notes issued by the ecb and the national central banks shall be the only such notes to have the status of legal tender within the community. . the member states may issue coins subject to approval by the ecb of the volume of the issue. the council may, acting in accordance with the procedure referred to in article c and after consulting the ecb, adopt measures to harmonize the denominations and technical specifications of all coins intended for circulation to the extent necessary to permit their smooth circulation within the community. article . the escb shall be composed of the ecb and of the national central banks. . the ecb shall have legal personality. . the escb shall be governed by the decision-making bodies of the ecb which shall be the governing council and the executive board. . the statute of the escb is laid down in a protocol annexed to this treaty. . articles . , . , . , , , . , , , , , . , . . . , . , .l(a) and of the statute of the escb may be amended by the council, acting either by a qualified majority on a recommendation from the ecb and after consulting the commission or unanimously on a proposal from the commission and after consulting the ecb. in either case, the assent of the european parliament shall be required. . the council, acting by a qualified majority either on a proposal from the commission and after consulting the european parliament and the ecb or on a recommendation from the ecb and after consulting the european parliament and the commission, shall adopt the provisions referred to in articles , . , . , , - , . , . and . of the statute of the escb. article when exercising the powers and carrying out the tasks and duties conferred upon them by this treaty and the statute of the escb, neither the ecb, nor a national central bank, nor any member of their decision-making bodies shall seek or take instructions from community institutions or bodies, from any government of a member state or from any other body. the community institutions and bodies and the governments of the member states undertake to respect this principle and not to seek to influence the members of the decision- making bodies of the ecb or of the national central banks in the performance of their tasks. article each member state shall ensure, at the latest at the date of the establishment of the escb, that its national legislation including the statutes of its national central bank is compatible with this treaty and the statute of the escb. article a . in order to carry out the tasks entrusted to the escb, the ecb shall, in accordance with the provisions of this treaty and under the conditions laid down in the statute of the escb: - make regulations to the extent necessary to implement the tasks defined in article . , first indent, articles . , and . of the statute of the escb and in cases which shall be laid down in the acts of the council referred to in article ( ); - take decisions necessary for carrying out the tasks entrusted to the escb under this treaty and the statute of the escb; - make recommendations and deliver opinions. . a regulation shall have general application. it shall be binding in its entirety and directly applicable in all member states. recommendations and opinions shall have no binding force. a decision shall be binding in its entirety upon those to whom it is addressed. articles to shall apply to regulations and decisions adopted by the ecb. the ecb may decide to publish its decisions, recommendations and opinions. . within the limits and under the conditions adopted by the council under the procedure laid down in article ( ), the ecb shall be entitled to impose fines or periodic penalty payments on undertakings for failure to comply with obligations under its regulations and decisions. article . by way of derogation from article , the council may, acting unanimously on a recommendation from the ecb or from the commission, and after consulting the ecb in an endeavour to reach a consensus consistent with the objective of price stability, after consulting the european parliament, in accordance with the procedure in paragraph for determining the arrangements, conclude formal agreements on an exchange rate system for the ecu in relation to non-community currencies. the council may, acting by a qualified majority on a recommendation from the ecb or from the commission, and after consulting the ecb in an endeavour to reach a consensus consistent with the objective of price stability, adopt, adjust or abandon the central rates of the ecu within the exchange rate system. the president of the council shall inform the european parliament of the adoption, adjustment or abandonment of the ecu central rates. . in the absence of an exchange rate system in relation to one or more non-community currencies as referred to in paragraph , the council, acting by a qualified majority either on a recommendation from the commission and after consulting the ecb or on a recommendation from the ecb, may formulate general orientations for exchange-rate policy in relation to these currencies. these general orientations shall be without prejudice to the primary objective of the escb to maintain price stability. . by way of derogation from article , where agreements concerning monetary or foreign exchange regime matters need to be negotiated by the community with one or more states or international organizations, the council, acting by a qualified majority on a recommendation from the commission and after consulting the ecb, shall decide the arrangements for the negotiation and for the conclusion of such agreements. these arrangements shall ensure that the community expresses a single position. the commission shall be fully associated with the negotiations. agreements concluded in accordance with this paragraph shall be binding on the institutions of the community, on the ecb and on member states. . subject to paragraph , the council shall, on a proposal from the commission and after consulting the ecb, acting by a qualified majority decide on the position of the community at international level as regards issues of particular relevance to economic and monetary union and, acting unanimously, decide its representation in compliance with the allocation of powers laid down in articles and . . without prejudice to community competence and community agreements as regards economic and monetary union, member states may negotiate in international bodies and conclude international agreements. chapter institutional provision article a . the governing council of the ecb shall comprise the members of the executive board of the ecb and the governors of the national central banks. (a) the executive board shall comprise the president, the vice- president and four other members. (b) the president, the vice-president and the other members of the executive board shall be appointed from among the persons of recognized standing and professional experience in monetary or banking matters by common accord of the governments of the member states at the level of heads of state or of government, on a recommendation from the council, after it has consulted the european parliament and the governing council of the ecb. their term of office shall be eight years and shall not be renewable. only nationals of member states may be members of the executive board. article b . the president of the council and a member of the commission may participate, without having the right to vote, in meetings of the governing council of the ecb. the president of the council may submit a motion for deliberation to the governing council of the ecb. . the president of the ecb shall be invited to participate in council meetings when the council is discussing matters relating to the objectives and tasks of the escb. . the ecb shall address an annual report on the activities of the escb and on the monetary policy of both the previous and current year to the european parliament, the council and the commission, and also to the european council. the president of the ecb shall present this report to the council and to the european parliament, which may hold a general debate on that basis. the president of the ecb and the other members of the executive board may, at the request of the european parliament or on their own initiative, be heard by the competent committees of the european parliament. article c . in order to promote co-ordination of the policies of member states to the full extent needed for the functioning of the internal market, a monetary committee with advisory status is hereby set up. it shall have the following tasks: - to keep under review the monetary and financial situation of the member states and of the community and the general payments system of the member states and to report regularly thereon to the council and to the commission; - to deliver opinions at the request of the council or of the commission, or on its own initiative for submission to those institutions; - without prejudice to article , to contribute to the preparation of the work of the council referred to in articles f, g, ( ), ( ), ( ) and ( ), a, a, b, c, e( ), f( ), h, i, j( ) and k( ); - to examine, at least once a year, the situation regarding the movement of capital and the freedom of payments, as they result from the application of this treaty and of measures adopted by the council; the examination shall cover all measures relating to capital movements and payments; the committee shall report to the commission and to the council on the outcome of this examination. the member states and the commission shall each appoint two members of the monetary committee. . at the start of the third stage, and economic and financial committee shall be set up. the monetary committee provided for in paragraph shall be dissolved. the economic and financial committee shall have the following tasks: - to deliver opinions at the request of the council or of the commission, or on its own initiative for submission to those institutions; - to keep under review the economic and financial situation of the member states and of the community and to report regularly thereon to the council and to the commission, in particular on financial relations with third countries and international institutions; - without prejudice to article , to contribute to the preparation of the work of the council referred to in article f, g, ( ), ( ),( ) and ( ), a, a, b, c, ( ), a( ), ( ) and ( ), , h, i( ) and ( ), k( ), l( ) and ( ), and to carry out other advisory and preparatory tasks assigned to it by the council; - to examine, at least once a year, the situation regarding the movement of capital and the freedom of payments, as they result from the application of this treaty and of measures adopted by the council; the examination shall cover all measures relating to capital movements and payments; the commission shall report to the commission and to the council on the outcome of this examination. the member states, the commission and the ecb shall each appoint no more than two members of the committee. . the council shall, acting by qualified majority on a proposal from the commission and after consulting the ecb and the committee referred to in this article, lay down detailed provisions concerning the composition of the economic and financial committee. the president of the council shall inform the european parliament of such a decision. . in addition to the tasks set in paragraph , if and as long as there are member states with a derogation as referred to in articles k and l, the committee shall keep under review the monetary and financial situation and the general payments system of those member states and report regularly thereon to the council and to the commission. article d for matters within the scope of articles ( ), c with the exception of paragraph , , j, k and l( ) and ( ), the council or a member state may request the commission to make a recommendation or a proposal, as appropriate. the commission shall examine this request and submit its conclusions to the council without delay. chapter transitional provisions article e . the second stage for achieving economic and monetary union shall begin on january . . before that date (a) each member state shall: - adopt, where necessary, appropriate measures to comply with the prohibitions laid down in article b, without prejudice to article e, and in articles and a( ); - adopt, if necessary, with a view to permitting the assessment provided for in subparagraph (b), multiannual programmes intended to ensure the lasting convergence necessary for the achievement of economic and monetary union, in particular with regard to price stability and sound public finances; (b) the council shall, on the basis of a report from the commission, assess the progress made with regard to economic and monetary convergence, in particular with regard to price stability and sound public finances, and the progress made with the implementation of community law concerning the internal market. . the provision of articles , a( ), b( ), and c with the exception of paragraphs , , and shall apply from the beginning of the second stage. the provision of articles a( ), c( ), ( ) and ( ), , a, , , a, b and c( ) and ( ) shall apply from the beginning of the third stage. . in the second stage, member states shall endeavour to avoid excessive government deficits. . during the second stage, each member state shall, as appropriate, start the process leading to the independence of its central bank, and in accordance with article . article f . at the start of the second stage, a european monetary institute (hereinafter referred to as "emi") shall be established and take up its duties; it shall have legal personality and be directed and managed by a council, consisting of a president and the governors of the national central banks, one of whom shall be vice-president. the president shall be appointed by common accord of the governments of the member states at the level of heads of state or of government, on a recommendation from, as the case may be, the committee of governors of the central banks of the member states (hereinafter referred to as "committee of governors") or the council of the emi, and after consulting the european parliament and the council. the president shall be selected from among persons of recognized standing and professional experience in monetary or banking matters. only nationals of member states may be president of the emi. the council of the emi shall appoint the vice-president. the statute of the emi is laid down in a protocol annexed to this treaty. the committee of governors shall be dissolved at the start of the second stage. . the emi shall: - strengthen co-operation between the national central banks; - strengthen the co-ordination of monetary policies of the member states, with the aim of ensuring price stability; - monitor the functioning of the european monetary system; - hold consultations concerning issues falling within the competence of the national central banks and affecting the stability of financial institutions and markets; - take over the tasks of the european monetary cooperation fund, which shall be dissolved; the modalities of dissolution are laid down in the statute of the emi; - facilitate the use of the ecu and oversee its development, including the smooth functioning of the ecu clearing system. . for the preparation of the third stage, the emi shall: - prepare the instruments and procedures necessary for carrying out a single monetary policy in the third stage; - promote the harmonization, where necessary, of rules and practices governing the collection, compilation and distribution of statistics in the areas in the areas within its field of competence; - prepare the rules for operations to be undertaken by the national central banks within the framework of the escb; - promote the efficiency of cross-border payments; - supervise the technical preparation of ecu bank notes. at the latest by december , the emi shall specify the regulatory, organizational and logistical framework necessary for the escb to perform its tasks in the third stage. this framework shall be submitted for decision to the ecb at the date of its establishment. . the emi, acting by a majority of two thirds of the members of its council, may: - formulate opinions or recommendations on the overall orientation of monetary policy and exchange rate policy as well as on related measures introduced in each member state; - submit opinions or recommendations to governments and to the council on policies which might affect the internal or external monetary situation in the community and, in particular, the functioning of the european monetary system; - make recommendations to the monetary authorities of the member states concerning the conduct of monetary policy. . the emi, acting unanimously, may decided to publish its opinions and its recommendations. . the emi shall be consulted by the council regarding any proposed community act within its field of competence. within the limits and under the conditions set out by the council, acting by a qualified majority on a proposal from the commission and after consulting the european parliament and the emi, the emi shall be consulted by the authorities of the member states on any draft legislative provision within its field of competence. . the council may, acting unanimously on a proposal from the commission and after consulting the european parliament and the emi, confer upon the emi other tasks for the preparation of the third stage. . where this treaty provides for a consultative role for the ecb, reference to the ecb shall be read as referring to the emi before the establishment of the ecb. where this treaty provides for a consultative role for the emi, references to the emi shall be read, before january , as referring to the committee of governors. . during the second stage, the term "ecb" used in articles , , , , and shall be read as referring to the emi. article g the currency composition of the ecu basket shall not be changed. from the start of the third stage, the value of the ecu shall be irrevocably fixed in accordance with article l( ). article h . where a member state is in difficulties or is seriously threatened with difficulties as regards its balance of payments either as a result of a overall disequilibrium in its balance of payments, or as a result of the type of currency at its disposal, and where such difficulties are liable in particular to jeopardize the functioning of the common market or the progressive implementation of the common commercial policy, the commission shall immediately investigate the position of the state in question and the action which, making use of all means at its disposal, that state has taken or may take in accordance with the provisions of this treaty. the commission shall state what measures it recommends the state concerned to take. if the action taken by a member states and the measures suggested by the commission do not prove sufficient to overcome the difficulties which have arisen or which threaten, the commission shall, after consulting the committee referred to in article c, recommend to the council the granting of mutual assistance and appropriate methods therefor. the commission shall keep the council regularly informed of the situation of how it is developing. . the council, acting by a qualified majority, shall grant such mutual assistance; it shall adopt directives or decisions laying down the conditions and details of such assistance, which may take such forms as: (a) a concerted approach to or within any other international organizations to which member states may have recourse; (b) measures needed to avoid deflection of trade where the state which is in difficulties maintains or reintroduces quantitative restrictions against third countries; (c) the granting of limited credits by other member states, subject to their agreement. . if the mutual assistance recommended by the commission is not granted by the council or if the mutual assistance granted and the measures taken are insufficient, the commission shall authorize the state which is in difficulties to take protective measures, the conditions and details of which the commission shall determine. such authorization may be revoked and such conditions and details may be changed by the council acting by a qualified majority. . subject to article k( ), this article shall cease to apply from the beginning of the third stage. article i . where a sudden crisis in the balance of payments occurs and a decision within the meaning of article h( ) is not immediately taken, the member state concerned may, as a precaution, take the necessary protective measures. such measures must cause the least possible disturbance in the functioning of the common market and must not be wider in scope than is strictly necessary to remedy the sudden difficulties which have arisen. . the commission and the other member state shall be informed of such protective measures not later than when they enter into force. the commission may recommend to the council the granting of mutual assistance under article h. . after the commission has delivered an opinion and the committee referred to in article c has been consulted, the council may, acting by a qualified majority, decide that the state concerned shall amend, suspend or abolish the protective measures referred to above. . subject to article k( ), this article shall cease to apply from the beginning of the third stage. article j . the commission and the emi shall report to the council on the progress made in the fulfilment by the member states of their obligations regarding the achievement of economic and monetary union. these reports shall include an examination of the compatibility between each member state's national legislation, including the statutes of its national central bank, and articles and of this treaty and the statute of the escb. the report shall also examine the achievement of a high degree of sustainable convergence by reference to the fulfilment by each member state of the following criteria: - the achievement of a high degree of price stability; this will be apparent from rate of inflation which is close to that of, at most, the three best performing member states in terms of price stability; - the sustainability of the government financial position; this will be apparent from having achieved a government budgetary position without a deficit that is excessive as determined in accordance with article c( ); - the observance of the normal fluctuation margins provided for by the exchange rate mechanism of the european monetary system, for at least two years, without devaluing against the currency of any other member state; - the durability of convergence achieved by the member state and of its participation in the exchange rate mechanism of the european monetary system being reflected in the long-term interest rate levels. the four criteria mentioned in this paragraph and the relevant periods over which they are to be respected are developed further in a protocol annexed to this treaty. the reports of the commission and the emi shall also take account of the development of the ecu, the results of the integration of markets, the situation and development of the balances of payments on current account and an examination of the development of unit labour costs and other price indices. . on the basis of these reports, the council, acting by a qualified majority on a recommendation from the commission, shall assess: - for each member state, whether it fulfils the necessary conditions for the adoption of a single currency; - where a majority of the member states fulfil the necessary conditions for the adoption of a single currency, and recommend its findings to the council, meeting in the composition of the heads of state or of government. the european parliament shall be consulted and forward its opinion to the council, meeting in the composition of the heads of state or of government. . taking due account of the reports referred to in paragraph and the opinion of the european parliament referred to in paragraph , the council, meeting in the composition of heads of state or of government, shall acting by a qualified majority, not later than december : - decide, on the basis of the recommendations of the council referred to in paragraph , whether a majority of the member states fulfil the necessary conditions for the adoption of a single currency; - decide whether it is appropriate for the community to enter the third stage, and if so - set the date for the beginning of the third stage. . if by the end of the date for the beginning of the third stage has not been set, the third stage shall start on january . before july , the council, meeting in the composition of heads of state or of government, after a repetition of the procedure provided for in paragraphs and , with the exception of the second indent of paragraph , taking into account the reports referred to in paragraph and the opinion of the european parliament, shall, acting by a qualified majority and on the basis of the recommendations of the council referred to in paragraph , confirm which member states fulfil the necessary conditions for the adoption of a single currency. article k . if the decision has been taken to set the date in accordance with article j( ), the council shall, on the basis of its recommendation referred to in article j( ), acting by a qualified majority on a recommendation from the commission, decide whether any, and if so which, member states shall have a derogation as defined in paragraph of this article. such member states shall in this treaty be referred to as "member states with a derogation". if the council has confirmed which member states fulfil the necessary conditions for the adoption of a single currency, in accordance with article j( ), those member states which do not fulfil the conditions shall have a derogation as defined in paragraph of this article. such member states shall in this treaty be referred to as "member states with a derogation". . at least once every two years, or at the request of a member state with a derogation, the commission and the ecb shall report to the council in accordance with the procedure laid down in article j( ). after consulting the european parliament and after discussion in the council, meeting in the composition of the heads of state or of government, the council shall, acting by a qualified majority on a proposal from the commission, decide which member states with a derogation fulfil the necessary conditions on the basis of the criteria set out in article j( ), and abrogate the derogations of the member states concerned. . a derogation referred to in paragraph shall entail that the following articles do not apply to the member state concerned: articles c( ) and ( ), ( ),( ), ( ) and ( ), a, a, , a( )(b). the exclusion of such a member state and its national central bank from rights and obligations within the escb is laid down in chapter ix of the statute of the escb. . in articles ( ), ( ) ,and ( ), a, a, and a( )(b), "member states" shall be read as "member states without a derogation". . the voting rights of member states with a derogation shall be suspended for the council decisions referred to in the articles of this treaty mentioned in paragraph . in that case, by way of derogation from articles and a( ), a qualified majority shall be defined as two thirds of the votes of the representatives of the member states without derogation weighted in accordance with article ( ), and unanimity of those member states shall be required for an act requiring unanimity. . articles h and i shall continue to apply to a member state with a derogation. article l . immediately after the decision on the date for the beginning of the third stage has been taken in accordance with article j( ), or, as the case may be, immediately after july : - the council shall adopt the provisions referred to in article ( ); - the governments of the member states without a derogation shall appoint, in accordance with the procedure set out in article of the statute of the escb, the president, the vice-president and the other members of the executive board of the ecb. if there are member states with a derogation, the number of members of the executive board may be smaller than provided for in article . of the statute of the escb, but in no circumstances shall it be less than four. as soon as the executive board is appointed, the escb and the ecb shall be established and shall prepare for their full operation as described in this treaty and the statute of the escb. the full exercise of their powers shall start from the first day of the third stage. . as soon as the ecb is established, it shall, if necessary, take over tasks of the emi. the emi shall go into liquidation upon the establishment of the ecb; the modalities of liquidation are laid down in the statute of the emi. . if and as long as there are member states with a derogation, and without prejudice to article ( ) of this treaty, the general council of the ecb referred to in article of the statute of the escb shall be constituted as a third decision-making body of the ecb. . at the starting date of the third stage, the council shall, acting with the unanimity of the member states without derogation, on a proposal from the commission and after consulting the ecb, adopt the conversion rates at which their currencies shall be irrevocably fixed and at which irrevocably fixed rate the ecu shall be substituted for these currencies, and the ecu will become a currency in its own right. this measure shall by itself not modify the external value of the ecu. the council shall, acting according to the same procedure, also take the other measures necessary for the rapid introduction of the ecu as the single currency of those member states. . if it is decided, according to the procedure set out in article k( ), to abrogate a derogation, the council shall, acting with the unanimity of the member states without a derogation and the member state concerned, on a proposal from the commission and after consulting the ecb, adopt the rate at which the ecu shall be substituted for the currency of the member state concerned, and take the other measures necessary for the introduction of the ecu as the single currency in the member state concerned. article m . until the beginning of the third stage, each member state shall treat its exchange rate policy as a matter of common interest. in doing so, member states shall take account of the experience acquired in co- operation within the framework of the european monetary system (ems) and in developing the ecu, and shall respect existing powers in this field. . from the beginning of the third stage and for as long as a member state has a derogation, paragraph shall apply by analogy to the exchange rate policy of that member state." ) in title ii of part three, the title of chapter shall be replaced by the following: "title vii common commercial policy" ) article shall be repealed. ) article shall be replaced with the following: "article . the common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalization, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. . the commission shall submit proposals to the council for implementing the common commercial policy. . where agreements with one or more states or international organizations need to be negotiated, the commission shall make recommendations to the council, which shall authorize the commission to open the necessary negotiations. the commission shall conduct these negotiations in consultation with a special committee appointed by the council to assist the commission in this task and within the framework of such directives as the council may issue to it. the relevant provision of article shall apply. . in exercising the powers conferred upon it by this article, the council shall act by a qualified majority." ) article shall be repealed. ) article shall be replaced by the following: "article in order to ensure that the execution of measures of commercial policy taken in accordance with this treaty by any member state is not obstructed by deflection of trade, or where differences between such measures lead to economic difficulties in one or more member states, the commission shall recommend the methods for the requisite co- operation between member states. failing this, the commission may authorise member states to take the necessary protective measures, the conditions and details of which it shall determine. in case of urgency,member states shall request authorization to take the necessary measures themselves from the commission, which shall take a decision as soon as possible; the member states concerned shall then notify the measures to the other member states. the commission may decide at any time that the member states concerned shall amend or abolish the measures in question. in the selection of such measures, priority shall be given to those which cause the least disturbance to the functioning of the common market." ) article shall be repealed. ) in part three, the title of title iii shall be replaced by the following: "title viii social policy, education, vocational training and youth" ) the first subparagraph of article a( ) shall be replaced by the following: " . in order to help achieve the objective laid down in the first paragraph, the council, acting in accordance with the procedure referred to in article c and after consulting the economic and social committee, shall adopt by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the member states." ) article shall be replaced by the following: "article in order to improve employment opportunities for workers in the internal market and to contribute thereby to raising the standard of living, a european social fund is hereby established in accordance with the provisions set out below; it shall aim to render the employment of workers easier and to increase their geographical and occupational mobility within the community, and to facilitate their adaptation to industrial changes and to changes in production systems, in particular through vocational training and retraining". ) article shall be replaced by the following: "article the council, acting in accordance with the procedure referred to in article c and after consulting the economic and social committee, shall adopt implementing decisions relating to the european social fund." ) articles , and shall be replaced by the following: "chapter education, vocational training and youth article . the community shall contribute to the development of quality education by encouraging co-operation between member states and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the member states for the content of teaching and the organization of education systems and their cultural and linguistic diversity. . community action shall be aimed at: - developing the european dimension in education, particularly through the teaching and dissemination of the languages of the member states; - encouraging mobility of students and teachers, inter alia by encouraging the academic recognition of diplomas and periods of study; - promoting co-operation between educational establishments; - developing exchanges of information and experience on issues common to the education systems of the member states; - encouraging the development of youth exchanges and of exchanges of socio-educational instructors; - encouraging the development of distance education. . the community and the member states shall foster co-operation with third countries and the competent international organizations in the field of education, in particular the council of europe . in order to contribute to the achievement of the objectives referred to in this article, the council: - acting in accordance with the procedure referred to in article b, after consulting the economic and social committee and the committee of the regions, shall adopt incentive measures, excluding any harmonization of the laws and regulations of the member states; - acting by a qualified majority on a proposal from the commission, shall adopt recommendations. article . the community shall implement a vocational training policy which shall support and supplement the action of the member states, while fully respecting the responsibility of the member states for the content and organization of vocational training. . community action shall aim to: - facilitate adaptation to industrial changes, in particular through vocational training and retraining; - improve initial and continuing vocational training in order to facilitate vocational integration and reintegration into the labour market; - facilitate access to vocational training and encourage mobility of instructors and trainees and particularly young people; - stimulate co-operation on training between educational or training establishments and firms; - develop exchanges of information and experience on issues common to the training systems of the member states. . the community and the member states shall foster co-operation with third countries and the competent international organizations in the sphere of vocational training. . the council, acting in accordance with the procedure referred to in article c and after consulting the economic and social committee, shall adopt measures to contribute to the achievement of the objectives referred to in this article, excluding any harmonization of the laws and regulations of the member states." ) the following shall be inserted: "title ix culture article . the community shall contribute to the flowering of the cultures of the member states, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore. . action by the community shall be aimed at encouraging co- operation between member states and, if necessary, supporting and supplementing their action in the following areas: - improvement of the knowledge and dissemination of the culture and history of the european peoples; - conservation and safeguarding of cultural heritage of european significance; - non-commercial cultural exchanges; - artistic and literary creation, including in the audiovisual sector. . the community and the member states shall foster co-operation with third countries and the competent international organizations in the sphere of culture, in particular the council of europe. . the community shall take cultural aspects into account in its action under other provisions of this treaty. . in order to contribute to the achievement of the objectives referred to in this article, the council: - acting in accordance with the procedure referred to in article b and after consulting the committee of the regions, shall adopt incentive measures, excluding any harmonization of the laws and regulations of the member states. the council shall act unanimously throughout the procedures referred to in article b; - acting unanimously on a proposal from the commission, shall adopt recommendations." ) titles iv, v, vi and vii shall be replaced by the following: "title x public health article . the community shall contribute towards ensuring a high level of human health protection by encouraging co-operation between the member states and, if necessary, lending support to their action. community action shall be directed towards the prevention of diseases, in particular the major health scourges, including drug dependence, by promoting research into their causes and their transmission, as well as health information and education. health protection requirements shall form a constituent part of the community's other policies. . member states shall, in liaison with the commission, co-ordinate among themselves their policies and programmes in the areas referred to in paragraph . the commission may, in close contact with the member states, take any useful initiative to promote such co- ordination. . the community and the member states shall foster co-operation with third countries and the competent international organizations in the sphere of public health. . in order to contribute to the achievement of the objectives referred to in this article, the council: - acting in accordance with the procedure referred to in article b, after consulting the economic and social committee and the committee of the regions, shall adopt incentive measures, excluding any harmonization of the laws and regulations of the member states; - acting by a qualified majority on a proposal from the commission, shall adopt recommendations. title xi consumer protection article a . the community shall contribute to the attainment of a high level of consumer protection through: (a) measures adopted pursuant to article a in the context of the completion of the internal market; (b) specific action which supports and supplements the policy pursued by the member states to protect the health, safety and economic interests of consumers and to provide adequate information to consumers. . the council, acting in accordance with the procedure referred to in article b and after consulting the economic and social committee, shall adopt the specific action referred to in paragraph (b). . action adopted pursuant to paragraph shall not prevent any member state from maintaining or introducing more stringent protective measures. such measures must be compatible with this treaty. the commission shall be notified of them. title xii trans-european networks article b . to help achieve the objectives referred to in articles a and a and to enable citizens of the union, economic operators and regional and local communities to derive the full benefit from the setting up of an area without internal frontiers, the community shall contribute to the establishment and development of trans-european networks in the areas of transport, telecommunications and energy infrastructures. . within the framework of a system of open and competitive markets, action by the community shall aim at promoting the interconnection and inter-operability of national networks as well as access to such networks. it shall take account in particular of the need to link island, landlocked and peripheral regions with the central regions of the community. article c . in order to achieve the objectives referred to in article b, the community: - shall establish a series of guidelines covering the objectives, priorities and broad lines of measures envisaged in the sphere of trans-european networks; these guidelines shall identify projects of common interest; - shall implement any measures that may prove necessary to ensure the inter-operability of the networks, in particular in the field of technical standardization; - may support the financial efforts made by the member states for projects of common interest financed by member states, which are identified in the framework of the guidelines referred to in the first indent, particularly through feasibility studies, loan guarantees or interest rate subsidies; the community may also contribute, through the cohesion fund to be set up no later than december pursuant to article d, to the financing of specific projects in member states in the area of transport infrastructure. the community's activities shall take into account the potential economic viability of the projects. . member states shall, in liaison with the commission, co-ordinate among themselves the policies pursued at national level which may have a significant impact on the achievement of the objectives referred to in article b. the commission may, in close co-operation with the member states, take any useful initiative to promote such co- ordination. . the community may decide to co-operate with third countries to promote projects of mutual interest and to ensure the inter-operability of networks. article d the guidelines referred to in article c( ) shall be adopted by the council, acting in accordance with the procedure referred to in article b and after consulting the economic and social committee and the committee of the regions. guidelines and projects of common interest which relate to the territory of a member state shall require the approval of the member state concerned. the council, acting in accordance with the procedure referred to in article c and after consulting the economic and social committee and the committee of the regions, shall adopt the other measures provided for in article c( ). title xiii industry article . the community and the member states shall ensure that the conditions necessary for the competitiveness of the community's industry exist. for that purpose, in accordance with a system of open and competitive markets, their action shall be aimed at: - speeding up the adjustment of industry to structural changes; - encouraging an environment favourable to initiative and to the development of undertakings throughout the community, particularly small and medium-sized undertakings; - encouraging an environment favourable to co-operation between undertakings; - fostering better exploitation of the industrial potential of policies of innovation, research and technological development. . the member states shall consult each other in liaison with the commission and, where necessary, shall co-ordinate their action. the commission may undertake any useful initiative to promote such co- ordination. . the community shall contribute to the achievement of the objectives set out in paragraph through the policies and activities it pursues under other provisions of this treaty. the council, acting unanimously on a proposal from the commission, after consulting the european parliament and the economic and social committee, may decide on specific measures in support of action taken in the member states to achieve the objectives set out in paragraph . this title shall not provide a basis for the introduction by the community of any measure which could lead to a distortion of competition. title xiv economic and social cohesion article a in order to promote its overall harmonious development, the community shall develop and pursue its actions in leading to the strengthening of its economic and social cohesion. in particular, the community shall aim at reducing the disparities between the levels of development of the various regions and the backwardness of the least-favoured regions, including rural areas. article b member states shall conduct their economic policies and shall co- ordinate them is such a way as, in addition, to attain the objectives set out in article a. the formulation and implementation of the community's policies and actions and the implementation of the internal market shall take into account the objectives set out in article a and shall contribute to their achievement. the community shall also support the achievement of these objectives by the action it takes through the structural funds (european agricultural guidance and guarantee fund, guidance section; european social fund; european regional development fund), the european investment bank and other existing financial instruments. the commission shall submit a report to the european parliament, the council, the economic and social committee and the committee of the regions every three years on the progress made towards achieving economic and social cohesion and on the manner in which the various means provided for in this article have contributed to it. this report shall, if necessary, be accompanied by appropriate proposals. if specific actions prove necessary outside the funds and without prejudice to the measures decided upon within the framework of the other community policies, such actions may be adopted by the council acting unanimously on a proposal from the commission and after consulting the european parliament, the economic and social committee and the committee of the regions. article c the european regional development fund is intended to help redress the main regional imbalances in the community through participation in the development and structural adjustments of regions whose development is lagging behind and in the conversion of declining industrial regions. article d without prejudice to article e, the council, acting unanimously on a proposal from the commission and after obtaining the assent of the european parliament and consulting the economic and social committee and the committee of the regions, shall define the tasks, priority objectives and the organization of the structural funds, which may involve grouping the funds. the council, acting by the same procedure, shall also define the general rules applicable to them and the provisions necessary to ensure their effectiveness and the co- ordination of the funds with one another and with the other existing financial instruments. the council, acting in accordance with the same procedure, shall before december set up a cohesion fund to provide a financial contribution to projects in the fields of environment and trans- european networks in the area of transport infrastructure. article e implementing decisions relating to the european regional development fund shall be taken by the council, acting in accordance with the procedure referred to in article c and after consulting the economic and social committee and the committee of the regions. with regard to the european agricultural guidance and guarantee fund - guidance section, and the european social fund, articles and respectively shall continue to apply. title xv research and technological development article f . the community shall have the objective of strengthening the scientific and technological bases of community industry and encouraging it to become more competitive at international level, while promoting all the research activities deemed necessary by virtue of other chapters of this treaty. . for this purpose the community shall, throughout the community, encourage undertakings, including small and medium-sized undertakings, research centres and universities in their research and technological development activities of high quality; it shall support their efforts to co-operate with one another, aiming, notably, at enabling undertakings to exploit the internal market potential to the full, in particular through the opening up of national public contracts, the definition of common standards and the removal of legal and fiscal obstacles to that co-operation. . all community activities under this treaty in the area of research and technological development, including demonstration projects, shall be decided on and implemented in accordance with the provisions of this title. article g in pursuing these objectives, the community shall carry out the following activities, complementing the objectives complementing the activities carried out in the member states: (a) implementation of research, technological development and demonstration programmes, by promoting co-operation with and between undertakings, research centres and universities; (b) promotion of co-operation in the field of community research, technological development and demonstration with third countries and international organizations; (c) dissemination and optimization of the results of activities in community research, technological development and demonstration; (d) stimulation of the training and mobility of researchers in the community. article h . the community and the member states shall co-ordinate their research and technological development activities so as to ensure that national policies and community policy are mutually consistent. . in close co-operation with the member states, the commission may take any useful initiative to promote the co-ordination referred to in paragraph . article i . a multiannual framework programme, setting out all activities of the community, shall be adopted by the council, acting in accordance with the procedure referred to in article b after consulting the economic and social committee. the council shall act unanimously throughout the procedures referred to in article b. the framework programme shall: - establish the scientific and technological objectives to be achieved by the activities provided for in article g and fix the relevant priorities; - indicate the broad lines of such activities; - fix the maximum overall amount and the detailed rules for community financial participation in the framework programme and the respective shares in each of the activities provided for. . the framework programme shall be adapted or supplemented as the situation changes. . the framework programme shall be implemented through specific programmes developed within each activity. each specific programme shall define the detailed rules for implementing it, fix its duration and provide for the means deemed necessary. the sum of the amounts deemed necessary, fixed in the specific programmes, may not exceed the overall maximum amount fixed for the framework programme and each activity. . the council, acting by a qualified majority on a proposal from the commission and after consulting the european parliament and the economic and social committee, shall adopt the specific programmes. article j for the implementation of the multiannual framework programme the council shall: - determine the rules for the participation of undertakings, research centres and universities; - lay down the rules governing the dissemination of research results. article k in implementing the multiannual framework programmes, supplementary programmes may be decided on involving the participation of certain member states only, which shall finance them subject to possible community participation. the council shall adopt the rules applicable to supplementary programmes, particularly as regards the dissemination of knowledge and access by other member states. article l in implementing the multiannual framework programme the community may make provision, in agreement with the member states concerned, for participation in research and development programmes undertaken by several member states, including participation in the structures created for the execution of those programmes. article m in implementing the multiannual framework programme the community may make provision for co-operation in community research, technological development and demonstration with third countries or international organizations. the detailed arrangements for such co-operation may be the subject of agreements between the community and the third parties concerned, which shall be negotiated and concluded in accordance with article . article n the community may set up joint undertakings or any other structure necessary for the efficient execution of community research, technological development and demonstration programmes. article o the council, acting unanimously on a proposal from the commission and after consulting the european parliament and the economic and social committee, shall adopt the provisions referred to in article n. the council, acting in accordance with the procedure referred to in article c and after consulting the economic and social committee, shall adopt the provisions referred to in articles j to l. adoption of the supplementary programmes shall require the agreement of the member states concerned. article p at the beginning of each year the commission shall send a report to the european parliament and the council. the report shall include information on research and technological development activities and the dissemination of results during the previous year, and the work programme for the current year. title xvi environment article r . community policy on the environment shall contribute to pursuit of the following objectives: - preserving, protecting and improving the quality of the environment; - protecting human health; - prudent and rational utilization of natural resources; - promoting measures at international level to deal with regional or worldwide environmental problems. . community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the community. it shall be based on the precautionary principle and on the principles that preventative action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. environmental protection requirements must be integrated into the definition and implementation of other community policies. in this context, harmonization measures answering these requirements shall include, where appropriate, a safeguard clause allowing member states to take provisional measures, for non- economic environmental reasons, subject to a community inspection procedure. . in preparing its policy on the environment, the community shall take account of: - available scientific and technical data; - environmental conditions in the various regions of the community; - the potential benefits and costs of action or lack of action; - the economic and social development of the community as a whole and the balanced development of its regions. . within their respective spheres of competence, the community and the member states shall co-operate with third countries and with the competent international organizations. the arrangements for community co-operation may be the subject of agreements between the community and the third parties concerned, which shall be negotiated and concluded in accordance with article . the previous subparagraph shall be without prejudice to member states' competence to negotiate in international bodies and to conclude international agreements. article s . the council, acting in accordance with the procedure referred to in article c and after consulting the economic and social committee, shall decide what action is to be taken by the community in order to achieve the objective referred to in article r. . by way of derogation from the decision-making procedure provided for in paragraph and without prejudice to article a, the council, acting unanimously on a proposal from the commission and after consulting the european parliament and the economic and social committee, shall adopt: - provisions primarily of a fiscal nature; - measures concerning town and country planning, land use with the exception of waste management and measures of a general nature, and management of water resources; - measures significantly affecting a member state's choice between different energy sources and the general structure of its energy supply. the council may, under the conditions laid down in the preceding subparagraph,define those matters referred to in this paragraph on which decisions are to be taken by a qualified majority. . in other areas, general action programmes setting out priority objectives to be attained shall be adopted by the council, acting in accordance with the procedure referred to in article b and after consulting the economic and social committee. the council, acting under the terms of paragraph or paragraph according to the case, shall adopt the measures necessary for the implementation of these programmes. . without prejudice to certain measures of a community nature, the member states shall finance and implement the environment policy. . without prejudice to the principle that the polluter should pay, if a measure based on the provisions of paragraph involves costs deemed disproportionate for the public authorities of a member state, the council shall, in the act adopting that measure, lay down appropriate provisions in the form of: - temporary derogations and/or - financial support from the cohesion fund to be set up no later than december pursuant to article d. article t the protective measures adopted pursuant to article s shall not prevent any member state from maintaining or introducing more stringent protective measures. such measures must be compatible with this treaty. they shall be notified to the commission. title xvii development co-operation article u . community policy in the sphere of development co-operation, which shall be complementary to the policies pursued by the member states, shall foster: - the sustainable economic and social development of the developing countries, and more particularly the most disadvantaged among them; - the smooth and gradual integration of the developing countries into the world economy; - the campaign against poverty in the developing countries. . community policy in this area shall contribute to the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms. . the community and the member state shall comply with the commitments and take account of the objectives they have approved in the context of the united nations and other competent international organizations. article v the community shall take account of the objectives referred to in article u in the policies that it implements which are likely to affect developing countries. article w .. without prejudice to the other provisions in this treaty the council, acting in accordance with the procedure referred to in article c, shall adopt the measures necessary to further the objectives referred to in article u. such measures may take the form of multiannual programmes. . the european investment bank shall contribute, under the terms laid down in its statute, to the implementation of the measures referred to in paragraph . . the provisions of this article shall not affect co-operation with the african, caribbean and pacific countries in the framework of the acp- eec convention. article x . the community and the member states shall co-ordinate their policies on development co-operation and shall consult each other on their aid programmes, including in international organizations and during international conferences. they may undertake joint action. member states shall contribute if necessary to the implementation of community aid programmes. . the commission may take any useful initiative to promote the co- ordination referred to in paragraph . article y within their respective spheres of competence, the community and the member states shall co-operate with third countries and with the competent international organizations. the arrangements for community co-operation may be the subject of arrangements between the community and the third parties concerned, which shall be negotiated and concluded in accordance with article . the previous paragraph shall be without prejudice to members states' competence to negotiate in international bodies and to conclude international agreements." e. in part five "institutions of the community" ) article shall be replaced by the following: "article the european parliament, which shall consist of representatives of the peoples of the states brought together in the community, shall exercise the powers conferred upon it by this treaty." ) paragraph of article shall be replaced by the following: " . the european parliament shall draw up proposals for elections by direct universal suffrage in accordance in accordance with a uniform procedure in all member states. the council shall, acting unanimously after obtaining the assent of the european parliament, which shall act by a majority of its component members, lay down the appropriate provision, which it shall recommend to member states for adoption in accordance with their respective constitutional requirements." ) the following article shall be inserted: "article a political parties at european level are important as a factor for integration within the union. they contribute to forming a european awareness and to expressing the political will of the citizens of the union. article b in so far as provided in this treaty, the european parliament shall participate in the process leading up to the adoption of community acts by exercising its powers under the procedures laid down in articles b and c and by giving its assent or delivering advisory opinions. the european parliament may, acting by a majority of its members, request the commission to submit any appropriate proposal on matters on which it considers that a community act is required for the purpose of implementing this treaty. article c in the course of its duties, the european parliament may, at the request of a quarter of its members, set up a temporary committee of inquiry to investigate, without prejudice to the powers conferred by this treaty on other institutions or bodies, alleged contraventions or maladministration in the implementation of community law, except where the alleged facts are being examined before a court and while the case is still subject to legal proceedings. the temporary committee of inquiry shall cease to exist on the submission of its report. the detailed provisions governing the exercise of the right of inquiry shall be determined by common accord of the european parliament, the council and the commission. article d any citizen of the union, and any natural or legal person residing or having his registered office in a member state, shall have the right to address, individually or in association with other citizens or persons, a petition to the european parliament on a matter which comes within the community's fields of activity and which affects him, her or it directly. article e . the european parliament shall appoint an ombudsman empowered to receive complaints from any citizen of the union or any natural or legal person residing or having its registered office in a member state concerning instances of maladministration in the activities of the community institutions or bodies, with the exception of the court of justice and the court of first instance acting in their judicial role. in accordance with his duties, the ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a member of the european parliament, except where the alleged facts are or have been the subject of legal proceedings. where the ombudsman establishes an instance of maladministration, he shall refer the matter to the institution concerned, which shall have a period of three months in which to inform him of its views. the ombudsman shall then forward a report to the european parliament and the institution concerned. the person lodging the complaint shall be informed of the outcome of such inquiries. the ombudsman shall submit an annual report to the european parliament on the outcome of his inquiries. . the ombudsman shall be appointed after each election of the european parliament for the duration of its term of office. the ombudsman shall be eligible for reappointment. the ombudsman may be dismissed by the court of justice at the request at the request of the european parliament if he no longer fulfils the conditions required for the performance of this duties or if he is guilty of serious misconduct. . the ombudsman shall be completely independent in the performance of his duties. in the performance of those duties he shall seek nor take instructions from any body. the ombudsman may not, during his term of office, engage in any other occupation, whether gainful or not. . the european parliament shall, after seeking an opinion from the commission and with the approval of the council acting by a qualified majority, lay down the regulations and general conditions governing the ombudsman's duties." ) the second subparagraph of article shall be supplemented by the following sentence: "in this case, the term of office of the members of the commission appointed to replace them shall expire on the date which the term of office of the members of the commission obliged to resign as a body would have expired." ) the following article shall be inserted: "article the council shall consist of a representative of each member state at ministerial level, authorized to commit the government of that member state. the office of president shall be held in turn by each member state in the council for a term of six months, in the following order of member states: - for a first cycle of six years: belgium, denmark, germany, greece, spain, france, ireland, italy, luxembourg, netherlands, portugal, united kingdom; - for the following cycle of six years: denmark, belgium, greece, germany, france, spain, italy, ireland, netherlands, luxembourg, united kingdom, portugal. ) the following article shall be inserted: "article the council shall meet when convened by its president on his initiative or at the request of one of its members or of the commission." ) article shall be repealed. ) the following article shall be inserted: "article . a committee consisting of the permanent representatives of the member states shall be responsible for preparing the work of the council and for carrying out the tasks assigned to it by the council. . the council shall be assisted by a general secretariat, under the direction of a secretary-general. the secretary-general shall be appointed by the council acting unanimously. the council shall decide on the organization of the general secretariat. . the council shall adopt its rules of procedure." ) the following article shall be inserted: "article the council shall, acting by a qualified majority, determine the salaries, allowances and pensions of the president and members of the commission, and of the president, judges, advocates-general and registrar of the court of justice. it shall also, again by a qualified majority, determine any payment to be made instead of remuneration." ) the following articles shall be inserted: "article the commission shall publish annually, not later than one month before the opening of the session of the european parliament, a general report on the activities of the community. article . the commission shall consist of seventeen members, who shall be chosen on the grounds of their general competence and whose independence is beyond doubt. the number of members of the commission may be altered by the council, acting unanimously. only nationals of member states may be members of the commission. the commission must include at least one national of each of the member states, but may not include more than two members having the nationality of the same state. . the members of the commission shall, in the general interest of the community, be completely independent in the performance of their duties. in the performance of these duties, they shall neither seek nor take instructions from any government or from any other body. they shall refrain from any action incompatible with their duties. each member state undertakes to respect this principle and not to seek to influence the members of the commission in the performance of their tasks. the members of the commission may not, during their term of office, engage in any other occupation, whether gainful or not. when entering upon their duties they shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom and in particular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits. in the events of any breach of these obligations, the court of justice may, on application by the council or the commission, rule that the member concerned be, according to the circumstances, either compulsorily retired in accordance with article or deprived of his rights to a pension or benefits in its stead. article . the members of the commission shall be appointed, in accordance with the procedure referred to in paragraph , for a period of five years, subject, if need be, to article . their term of office shall be renewable. . the governments of the member states shall nominate by common accord, after consulting the european parliament, the person they intend to appoint as president of the commission. the governments of the member states shall, in consultation with the nominee for president, nominate the other persons whom they intend to appoint as members of the commission. the president and the other members of the commission thus nominated shall be subject as a body to a vote of approval by the european parliament. after approval by the european parliament, the president and the other members of the commission shall be appointed by common accord of the governments of the member states. . paragraphs and shall be applied for the first time to the president and the other members of the commission whose term of office begins on january . the president and the other members of the commission whose term of office begins on january shall be appointed by common accord of the governments of the member states. their term of office shall expire on january . article apart from normal replacement, or death, the duties of a member of the commission shall end when he resigns or is compulsorily retired. the vacancy thus caused shall be filled for the remainder of the member's term of office by a new member appointed by common accord of the governments of the member states. the council may, acting unanimously, decide that such a vacancy need not be filled. in the event of resignation, compulsory retirement or death, the president shall be replaced for the remainder of his term of office. the procedure laid down in article ( ) shall be applicable for the replacement of the president. save in the case of compulsory retirement under article , members of the commission shall remain in office until they have been replaced. article if any member of the commission no longer fulfills the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the court of justice may, on application by the council or the commission, compulsorily retire him. article the commission may appoint a vice-president or two vice-presidents from among its members. article . the council and the commission shall consult each other and shall settle by common accord their methods of co-operation. . the commission shall adopt its rules of procedure so as to ensure that both it and its departments operate in accordance with the provisions of this treaty. it shall ensure that these rules are published. article the commission shall act by a majority of the number of members provided for in article . a meeting of the commission shall be valid only if the number of members laid down in its rules of procedure is present." ) article shall be replaced by the following: "article the court of justice shall consist of thirteen judges. the court of justice shall sit in plenary session. it may, however, form chambers each consisting of three of five judges, either to undertake certain preparatory inquiries or to adjudicate on particular categories of cases in accordance with rules laid down for these purposes. the court of justice shall sit in plenary session when a member state or a community institution that is a party to the proceedings so requests. should the court of justice so request, the council may, acting unanimously, increase the number of judges and make necessary adjustments to the second and third paragraphs of this article and to the second of article ." ) article a shall be replaced by the following: "article a . the court of first instance shall be attached to the court of justice with jurisdiction to hear and determine at first instance, subject to a right of appeal to the court of justice on points of law only and in accordance with the conditions laid down by statute, certain classes of action or proceeding defined in accordance with the conditions laid down in paragraph . the court of first instance shall not be competent to hear and determine questions referred for a preliminary ruling under article . . at the request of the court of justice and after consulting the european parliament and the commission, the council, acting unanimously, shall determine the classes of action or proceeding referred to in paragraph and the composition of the court of first instance and shall adopt the necessary adjustments and additional provisions to the statute of the the court of justice. unless the council decides otherwise, the provisions of this treaty relating to the court of justice, in particular the provisions of the protocol on the statute of the court of justice, shall apply to the court of first instance. . the members of the court of first instance shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to judicial office; they shall be appointed by common accord of the governments of the member states for a term of six years. the membership shall be partially renewed every three years. retiring members shall be eligible for re- appointment. . the court of first instance shall establish its rules of procedure in agreement with the court of justice. those rules shall require the unanimous approval of the council." ) article shall be replaced by the following: "article . if the court of justice finds that a member state has failed to fulfil an obligation under this treaty, the state shall be required to take the necessary measures to comply with the judgment of the court of justice. . if the commission considers that the member state concerned has not taken such measures it shall, after giving that state the opportunity to submit its observations, issue a reasoned opinion specifying the points on which the member state concerned has not complied with the judgment of the court of justice. if the member state concerned fails to take the necessary measures to comply with the court's judgment within the time-limit laid down by the commission, the latter may bring the case before the court of justice. in so doing it shall specify the amount of lump sum or penalty payment to be paid by the member state concerned which it considers appropriate in the circumstances. if the court of justice finds that the member state concerned has not complied with its judgment it may impose a lump sum or penalty payment on it. this procedure shall be without prejudice to article ." ) article shall be replaced by the following: "article regulations adopted jointly by the european parliament and the council, and by the council, pursuant to the provisions of this treaty, may give the court of justice unlimited jurisdiction with regard to the penalties provided for in such regulations." ) article shall be replaced by the following: "article the court of justice shall review the legality of acts adopted jointly by the european parliament and the council, of acts of the council, of the commission and of the ecb, other than recommendations and opinions, and of acts of the european parliament intended to produce legal effects vis-a-vis third parties. it shall for this purpose have jurisdiction in actions brought by a member state, the council or the commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this treaty or of any rule of law relating to its application, or misuse of powers. the court shall have jurisdiction under the same conditions, in actions brought by the european parliament and by the ecb for the purpose of protecting their prerogatives. any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. the proceedings provided for in this article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be." ) article shall be replaced by the following: "article should the european parliament, the council or the commission, in infringement of this treaty, fail to act, the member states and the other institutions of the community may bring an action before the court of justice to have the infringement established. the action shall be admissible only if the institution concerned has first been called upon to act. if, within two months of being so called upon, the institution concerned has not defined its position, the action may be brought within a further period of two months. any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the court of justice that an institution of the community has failed to address to that person any act other than a recommendation or an opinion. the court of justice shall have jurisdiction, under the same conditions, in actions or proceedings brought by the ecb in the areas falling within the latter's field of competence and in actions or proceedings brought against the latter." ) article shall be replaced by the following: "article the institution or institutions whose act has been declared void or whose failure to act has been declared contrary to this treaty shall be required to take the necessary measures to comply with the judgment of the court of justice. this obligation shall not affect any obligation which may result from the application of the second paragraph of article . this article shall also apply to the ecb." ) article shall be replaced by the following: "article the court of justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the treaty; (b) the validity and interpretation of acts of the institutions of the community and of the ecb; (c) the interpretation of the statutes of bodies established by an act of the council, where those statutes so provide. where such a question is raised before any court or tribunal of a member state, that court of tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the court of justice to give a ruling thereon. where any such question is raised in a case pending before a court or tribunal of a member state against whose decisions there is no judicial remedy under national law, the court or tribunal shall bring the matter before the court of justice." ) article shall be replaced by the following: "article the court of justice shall, within the limits hereinafter laid down, have jurisdiction in disputes concerning: (a) the fulfillment by member states of obligations under the statute of the european investment bank. in this connection, the board of directors of the bank shall enjoy the powers conferred upon the commission by article ; (b) measures adopted by the board of governors of the european investment bank. in this connection, any member state, the commission of the board of directors of the bank may institute proceedings under the conditions laid down in article ; (c) measures adopted by the board of directors of the european investment bank. proceedings against such measures may be instituted only by member states or by the commission, under the conditions laid down in article , and solely on the grounds of non- compliance with the procedure provided for in article ( ), ( ), ( ) and ( ) of the statute of the bank; (d) the fulfillment by the national central banks of obligations under this treaty and the statute of the escb. in this connection the powers of the council of the ecb in respect of national central banks shall be the same as those conferred upon the commission in respect of member states by article . if the court of justice finds that a national central bank has failed to fulfill an obligation under this treaty, that bank shall be required to take the necessary measures to comply with the judgment of the court of justice." ) article shall be replaced by the following: "article notwithstanding the expiry of the period laid down in the fifth paragraph of article , any party may, in proceedings in which a regulation adopted jointly by the european parliament and the council, or a regulation of the council, of the commission, or of the ecb is at issue, plead the grounds specified in the second paragraph of article in order to invoke before the court of justice the inapplicability of that regulation." ) the following section shall be inserted: "section the court of auditors article a the court of auditors shall carry out the audit. article b . the court of auditors shall consist of twelve members. . the members of the court of auditors shall be chosen from among persons who belong or have belonged in their respective countries to external audit bodies or who are especially qualified for this office. their independence must be beyond doubt. . the members of the court of auditors shall be appointed for a term of six years by the council, acting unanimously after consulting the european parliament. however, when the first appointments are made, four members of the court of auditors, chosen by lot, shall be appointed for a term of office of four years only. the members of the court of auditors shall be eligible for reappointment. they shall elect the president of the court of auditors from among their number for a term of three years. the president may be re-elected. . the members of the court of auditors shall, in the general interest of the community, be completely independent in the performance of their duties. in the performance of these duties, they shall neither seek nor take instructions from any government or from any other body. they shall refrain from any action incompatible with their duties. . the members of the court of auditors may not, during their term of office, engage in any other occupation, whether gainful or not. when entering upon their duties they shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom and in particular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits. . apart from normal replacement, or death, the duties of a member of the court of auditors shall end when he resigns, or is compulsorily retired by a ruling of the court of justice pursuant to paragraph . the vacancy thus caused shall be filled for the remainder of the member's term of office. save in the case of compulsory retirement, members of the court of auditors shall remain in office until they have been replaced. . a member of the court of auditors may be deprived of his office or of his right to a pension or other benefits in its stead only if the court of justice, at the request of the court of auditors, finds that he no longer fulfills the requisite conditions or meets the obligations arising from his office. . the council, acting by a qualified majority, shall determine the conditions of employment of the president and the members of the court of auditors and in particular their salaries, allowances and pensions. it shall also, by the same majority, determine any payment to be made instead of remuneration. . the provisions of the protocol on the privileges and immunities of the european communities applicable to the judges of the court of justice shall also apply to the members of the court of auditors. article c . the court of auditors shall examine the accounts of all revenue and expenditure of the community. it shall also examine the accounts of all revenue and expenditure of all bodies set up by the community in so far as the relevant constituent instrument does not preclude such examination. the court of auditors shall provide the european parliament and the council with a statement of assurance as to the reliability of the accounts and the legality and regularity of the underlying transactions. .the court of auditors shall examine whether all revenue has been received and all expenditure incurred in a lawful and regular manner and whether the financial arrangement has been sound. the audit of revenue shall be carried out on the basis both of the amounts established as due and the amounts actually paid to the community. the audit of expenditure shall be carried out on the basis both of commitments undertaken and payments made. these audits may be carried out before the closure of accounts for the financial year in question. . the audit shall be based on records and, if necessary, performed on the spot in other institutions of the community and in the member states. in the member states the audit shall be carried out in liaison with the national audit bodies or, if these do not have the necessary powers, with the competent national departments. these bodies or departments shall inform the court of auditors whether they intend to take part in the audit. the other institutions of the community and the national audit bodies or, if these do not have the necessary powers, the competent national departments, shall forward to the court of auditors, at its request, any document or information necessary to carry out its task. . the court of auditors shall draw up an annual report after the close of each financial year. it shall be forwarded to the other institutions of the community and shall be published, together with the replies of these institutions to the observations of the court of auditors, in the official journal of the european communities. the court of auditors may also, at any time, submit observations, particularly in the form of special reports, on specific questions and deliver opinions at the request of one of the other institutions of the community. it shall adopt its annual reports, special reports or opinions by a majority of its members. it shall assist the european parliament and the council in exercising their powers of control over the implementation of the budget." ) article shall be replace by the following: "article in order to carry out their task and in accordance with the provisions of the treaty, the european parliament acting jointly with the council, the council and the commission shall make regulations and issue directives, take decision, make recommendations or deliver opinions. a regulation shall have general application. it shall be binding in its entirety and directly applicable in all member states. a directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods. a decision shall be binding in its entirety upon those to whom it is addressed. recommendations and opinions shall have no binding force." ) the following articles shall be inserted: "article a . where, in pursuance of the treaty, the council acts on a proposal from the commission, unanimity shall be required for an act constituting an amendment to that proposal, subject to article b( ) and ( ). . as long as the council has not acted, the commission may alter its proposal at any time during the procedures leading to the adoption of a community act. article b . where reference is made in the treaty to this article for the adoption of an act, the following procedures shall apply. . the commission shall submit a proposal to the european parliament and the council. the council, acting by a qualified majority after obtaining the opinion of the european parliament, shall adopt a common position. the common position shall be communicated to the european parliament. the council shall inform the european parliament fully of the reasons which led it to adopt its common position. the commission shall inform the european parliament fully of its position. if, within three months of such communication, the european parliament: (a) approves the common position, the council shall definitively adopt the act in question in accordance with that common position; (b) has not taken a decision, the council shall adopt the act in question in accordance with its common position; (c) indicates, by an absolute majority of its component members, that it intends to reject the common position, it shall immediately inform the council. the council may convene a meeting of the conciliation committee referred to in paragraph to explain further its position. the european parliament shall thereafter either confirm, by an absolute majority of its component members, its rejection of the common position, in which event the proposed act shall be deemed not to have been adopted, or propose amendments in accordance with subparagraph (d) of this paragraph; (d) proposes amendments to the common position by an absolute majority of its component members, the amended text shall be forwarded to the council and to the commission which shall deliver an opinion on those amendments. . if, within three months of the matter being referred to it, the council action by a qualified majority, approves all the amendments of the european parliament, it shall amend its common position accordingly and adopt the act in question; however, the council shall act unanimously on the amendments on which the commission has delivered a negative opinion. if the council does not approve the act in question, the president of the council, in agreement with the president of the european parliament, shall forthwith convene a meeting of the conciliation committee. . the conciliation committee, which shall be composed of the members of the council or their representatives and an equal number of representative of the european parliament, shall have the task of reaching agreement on a joint text, by a qualified majority of the members of the council or their representatives and by a majority of the representatives of the european parliament. the commission shall take part in the conciliation committee's proceedings and shall take all the necessary initiatives with a view to reconciling the positions of the european parliament and the council. . if within six weeks of its being convened, the conciliation committee approves a joint text, the european parliament, acting by an absolute majority of the votes cast, and the council, acting by a qualified majority, shall have a period of six weeks from that approval in which to adopt the act in question in accordance with the joint text. if one of the two institutions fails to approve the proposed act, it shall be deemed not to have been adopted. . where the conciliation committee does not approve a joint text, the proposed act shall be deemed not to have been adopted unless the council, acting by a qualified majority within six weeks of expiry of the period granted to the conciliation committee, confirms the common position to which it agreed before the conciliation procedure was initiated, possibly with the amendments proposed by the european parliament. in this case, the act in question shall be finally adopted unless the european parliament, within six weeks of the date of confirmation by the council, rejects the text by an absolute majority of its component members, in which case the proposed act shall be deemed not to have been adopted. . the periods of three months and six weeks referred to in this article may be extended by a maximum of one month and two weeks respectively by common accord of the european parliament and the council. the period of three months referred to in paragraph shall be automatically extended by two months where paragraph (c) applies. . the scope of the procedure under this article may be widened, in accordance with the procedure provided for in article n( ) of the treaty on european union, on the basis of a report to be submitted to the council by the commission by at the latest. article c where reference is made in this treaty to this article for the adoption of an act, the following procedure shall apply: (a) the council, acting by a qualified majority on a proposal from the commission and after obtaining the opinion of the european parliament, shall adopt a common position. (b) the council's common position shall be communicated to the european parliament. the council and the commission shall inform the european parliament fully of the reasons which led the council to adopt its common position and also of the commission's position. if, within three months of such communication, the european parliament approves this common position or has not taken a decision within that period, the council shall definitively adopt the act in question in accordance with the common position. (c) the european parliament may, within the period of three months referred to in point (b), by an absolute majority of its component members, propose amendments to the council's common position. the european parliament may also, by the same majority, reject the council's common position. the result of the proceedings shall be transmitted to the council and the commission. if the european parliament has rejected the council's common position, unanimity shall be required for the council to act on a second reading. (d) the commission shall, within a period of one month, re-examine the proposal on the basis of which the council adopted its common position, by taking into account the amendments proposed by the european parliament. the commission shall forward to the council, at the same time as its re-examined proposal, the amendments of the european parliament which it has not accepted, and shall express its opinion on them. the council may adopt these amendments unanimously. (e) the council, acting by a qualified majority, shall adopt the proposal as re-examined by the commission. unanimity shall be required for the council to amend the proposal as re-examined by the commission. (f) in the cases referred to in points (c),(d) and (e), the council shall be required to act within a period of three months. if no decision is taken within this period, the commission proposal shall be deemed not to have been adopted. (g) the periods referred to in points (b) and (f) may be extended by a maximum of one month by common accord between the council and the european parliament." ) article shall be replaced by the following: "article regulations, directives and decisions adopted jointly by the european parliament and the council, and such acts adopted by the council or the commission, shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained pursuant to this treaty." ) article shall be replaced by the following: "article . regulations, directives and decisions adopted in accordance with the procedures referred to in article b shall be signed by the president of the european parliament and by the president of the council and published in the official journal of the community. they shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication. . regulations of the council and of the commission, as well as directives of those institutions which are address to all member states, shall be published in the official journal of the community. they shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication. . other directives, and decisions, shall be notified to those whom they are address and shall take effect upon such notification." ) article shall be replaced by the following: "article the number of members of the economic and social committee shall be as follows: belgium denmark germany greece spain france ireland italy luxembourg netherlands portugal united kingdom the members of the committee shall be appointed by the council, acting unanimously, for four years. their appointments shall be renewable. the members of the committee may not be bound by any mandatory instructions. they shall be completely independent in the performance of their duties, in the general interest of the community. the council, acting by a qualified majority, shall determine the allowances of members of the committee." ) article shall be replaced by the following: "article the committee shall elect its chairman and officers from among its members for a term of two years. it shall adopt its rules of procedure. the committee shall be convened by its chairman at the request of the council or of the commission. it may also meet on its own initiative." ) article shall be replaced by the following: "article the committee must be consulted by the council of the commission where this treaty so provides. the committee may be consulted by these institutions in all cases in which they consider it appropriate. it may issue an opinion on its own initiative in cases in which it considers such action appropriate. the council or the commission shall, if it considers it necessary, set the committee, for the submission of its opinion, a time limit which may not be less than one month from the date on which the chairman receives notification to this effect. upon expiry of the time limit, the absence of an opinion shall not prevent further action. the opinion of the committee and that of the specialized section, together with a record of the proceedings, shall be forwarded to the council and to the commission. ) the following chapter shall be inserted: "chapter the committee of the regions article a a committee consisting of representatives of regional and local bodies, hereinafter referred to as "the committee of the regions", is hereby established with advisory status. the number of members of the committee of the regions shall be as follows: belgium denmark germany greece spain france ireland italy luxembourg netherlands portugal united kingdom the members of the committee and an equal number of alternate members shall be appointed for four years by the council acting unanimously on proposals from the respective member states. their term of office shall be renewable. the members of the committee may not be bound by any mandatory instructions. they shall be completely independent in the performance of their duties, in the general interest of the community. article b the committee of the regions shall elect its chairman and officers from among its members for a term of two years. it shall adopt its rules of procedure and shall submit them for approval to the council, acting unanimously. the committee shall be convened by its chairman at the request of the council or of the commission. it may also meet on its own initiative. article c the committee of the regions shall be consulted by the council or by the commission where this treaty so provides and in all other cases in which one of these two institutions considers it appropriate. the council of the commission shall, if it considers it necessary, set the committee, for the submission of its opinion, a time-limit which may not be less than one month from the date on which the chairman receives notification to this effect. upon expiry of the time-limit the absence of an opinion shall not prevent further action. where the economic and social committee is consulted pursuant to article , the committee of the regions shall be informed by the council of the commission of the request for an opinion. where it considers that specific regional interests are involved, the committee of the regions may issue an opinion on the matter. it may issue an opinion on its own initiative in cases in which it considers such action appropriate. the opinion of the committee, together with a record of the proceedings, shall be forwarded to the council and to the commission." ) the following chapter shall be inserted: "chapter european investment bank article d the european investment bank shall have legal personality. the members of the european investment bank shall be the member states. the statute of the european investment bank is laid down in a protocol annexed to this treaty. article e the task of the european investment bank shall be to contribute, by having recourse to the capital market and utilizing its own resources, to the balanced and steady development of the common market in the interest of the community. for this purpose the bank shall, operating on a non-profit-making basis, grant loans and give guarantees which facilitate the financing of the following projects in all sectors of the economy: (a) projects for developing less-developed regions; (b) projects for modernizing or converting undertakings or for developing fresh activities called for by the progressive establishment of the common market, where these projects are of such a size or nature that they cannot be entirely financed by the various means available in the individual member states; (c) projects of common interest to several member states which are of such a size or nature that they cannot be entirely financed by the various means available in the individual member states. in carrying out its task, the bank shall facilitate the financing of investment programmes in conjunction with assistance from the structural funds and other community financial instruments." ) article shall be replaced by the following: "article all items of revenue and expenditure of the community, including those relating to the european social fund, shall be included in estimates to be drawn up for each financial year and shall be shown in the budget. administrative expenditure occasioned for the institutions by the provisions of the treaty on european union relating to common foreign and security policy and to co-operation in the fields of justice and home affairs shall be charged to the budget. the operational expenditure occasioned by the implementation of the said provisions may, under the conditions referred to therein, be charged to the budget. the revenue and expenditure shown in the budget shall be in balance." ) article shall be repealed. ) article shall be replaced by the following: "article without prejudice to other revenue, the budget shall be financed wholly from own resources. the council, acting unanimously on a proposal from the commission and after consulting the european parliament, shall lay down provisions relating to the system of own resources of the community, which it shall recommend to the member states for adoption in accordance with their respective constitutional requirements." ) the following article shall be inserted: "article a with a view to maintaining budgetary discipline, the commission shall not make any proposal for a community act, or alter its proposals, or adopt any implementing measure which is likely to have appreciable implications for the budget without providing the assurance that the proposal or that measure is capable of being financed within the limit of the community's own resources arising under provisions laid down by the council pursuant to article ." ) article shall be replaced by the following; "article the commission shall implement the budget, in accordance with the provisions of the regulations made pursuant to article , on its own responsibility and within the limits of the appropriations, having regard tot he principles of sound financial management. the regulations shall lay down detailed rules for each institution concerning its part in effecting its own expenditure. within the budget, the commission may, subject to the limits and conditions laid down in the regulations made pursuant to article , transfer appropriations from one chapter to another or from one subdivision to another." ) article shall be replaced by the following: "article . the european parliament, acting on a recommendation from the council which shall act by qualified majority, shall give a discharge to the commission in respect of the implementation of the budget. to this end, the council and the european parliament in turn shall examine the accounts and the financial statement referred to in article a, the annual report by the court of auditors together with the replies of the institutions under audit to the observations of the court of auditors and any relevant special reports by the court of auditors. before giving a discharge to the commission, or for any other purpose in connection with the exercise of its power over the implementation of the budget, the european parliament may ask to hear the commission give evidence with regard to the execution of expenditure or the operation of financial control systems. the commissions shall submit any necessary information to the european parliament at the latter's request. . the commission shall take all appropriate steps to act on the observations in the decisions giving discharge and on other observations by the european parliament relating to the execution of expenditure, as well as on comments accompanying the recommendations on discharge adopted by the council. at the request of the european parliament or the council, the commission shall report on the measures taken in the light of these observations and comments and in particular on the instructions given to the departments which are responsible for the implementation of the budget. these reports shall also be forwarded to the court of auditors." ) articles a and b shall be repealed. ) article shall be replaced by the following: "article the council, acting unanimously on a proposal from the commission and after consulting the european parliament and obtaining the opinion of the court of auditors, shall: (a) make financial regulations specifying in particular the procedure to be adopted for establishing and implementing the budget and for presenting and auditing accounts; (b) determine the methods and procedure whereby the budget revenue provided under the arrangements relating to the community's own resources shall be made available to the commission, and determine the measures to be applied, if need be, to meet cash requirements; (c) lay down rules concerning the responsibility of financial controllers, authorizing officers and accounting officers, and concerning appropriate arrangements for inspection." ) the following article shall be inserted: "article a member states shall take the same measures to counter fraud affecting the financial interests of the community as they take to counter fraud affecting their own financial interests. without prejudice to the other provisions of the treaty, member states shall co-ordinate their action aimed at protecting the financial interests of the community against fraud. to this end they shall organize, with the help of the commission, close and regular co-operation between the competent departments of their administrations." ) article shall be replaced by the following: "article the contractual liability of the community shall be governed by the law applicable to the contract in question. in the case of non-contractual liability, the community shall, in accordance with the general principles common to the law of the member states, make good any damage caused by its institutions or by its servants in the performance of their duties. the preceding paragraph shall apply under the same conditions to damage caused by the ecb or by its servants in the performance of their duties. the personal liability of its servants towards the community shall be governed by the provisions laid down in their staff regulations or in the conditions of employment applicable to them." ) article shall be amended as follows: (a) paragraph shall be replaced by the following: " . with regard to the french overseas departments, the general and particular provisions of this treaty relating to: - the free movement of goods; - agriculture, save for article ( ); - the liberalization of services - the rules on competition; - the protective measures provided for in articles h, i and ; - the institutions, shall apply as soon as this treaty enters into force. the conditions under which the other provisions of this treaty are to apply shall be determined, within two years of entry into force of this treaty, by decisions of the council, acting unanimously on a proposal from the commission. the institutions of the community will, within the framework of the procedures provided for in this treaty, in particular article , take care that the economic and social developments of these areas is made possible." (b) in paragraph , subparagraph (a) shall be replaced by the following: "(a) this treaty shall not apply to the faroe islands." ) article shall be replaced by the following: "article . where this treaty provides for the conclusion of agreements between the community and one or more states or international organizations, the commission shall make recommendations to the council, which shall authorize the commission to open the necessary negotiations. the commission shall conduct these negotiations in consultation with special committees appointed by the council to assist it in this task and within the framework of such directives as the council may issue to it. in exercising the powers conferred upon it by this paragraph, the council shall act by a qualified majority, except in the cases provided for in the second sentence of paragraph , for which it shall act unanimously. . subject to the powers vested in the commission in this field, the agreements shall be concluded by the council, acting by a qualified majority on a proposal from the commission. the council shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of internal rules, and for the agreements referred to in article . . the council shall conclude agreements after consulting the european parliament, except for the agreements referred to in article ( ), including cases where the agreement covers a field for which the procedure referred to in article b or that referred to in article c is required for the adoption of internal rules. the european parliament shall deliver its opinion within a time limit which the council may lay down according to the urgency of the matter. in the absence of an opinion within that time limit, the council may act. by way of derogation from the previous subparagraph, agreements referred to in article , other agreements establishing a specific institutional framework by organizing co-operation procedures, agreements having important budgetary implications for the community and agreements entailing amendment of an act adopted under the procedure referred to in article b shall be concluded after the assent of the european parliament has been obtained. the council and the european parliament may, in an urgent situation, agree upon a time limit for the assent. . when concluding an agreement , the council may, by way of derogation from paragraph , authorize the commission to approve modifications on behalf of the community where the agreement provides for them to be adopted by a simplified procedure or by a body set up by the agreement; it may attach specific conditions to such authorization. . when the council envisages concluding an agreement which calls for amendments to this treaty, the amendments must first be adopted in accordance with the procedure laid down in article n of the treaty on european union. . the council, the commission or a member state may obtain the opinion of the court of justice as to whether an agreement envisaged is compatible with the provisions of this treaty. where the opinion of the court of justice is adverse, the agreement may enter into force only in accordance with article n of the treaty on european union. . agreements concluded under the conditions set out in this article shall be binding on the institutions of the community and on member states." ) the following article shall be inserted: "article a where it is provided, in a common position or in a joint action adopted according to the provisions of the treaty on european union relating to the common foreign and security policy, for an action by the community to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the council shall take the necessary urgent measures. the council shall act by a qualified majority on a proposal from the commission." ) article shall be replaced by the following: "article the community shall establish close co-operation with the organization for economic cooperation and development, the details of which shall be determined by common accord." ) article and shall be repealed. ) article shall be replaced by the following: "article the community may conclude with one or more states or international organizations agreements establishing an association involving reciprocal rights and obligations, common action and special procedures." f. in annex iii: ) the title shall be replaced by the following: "list of invisible transactions referred to in article h of this treaty". g. in the protocol on the statue of the european investment bank: ) the reference to articles and shall be replaced by a reference to articles b and e. title provisions amending the treaty establishing the european coal and steel community article h the treaty establishing the european coal and steel community shall be amended in accordance with the provisions of this article. ) article shall be replaced by the following: "article the institutions of the community shall be: - a high authority (hereinafter referred to as "the commission"); - a common assembly (hereinafter referred to as "the european parliament"); - a special council of ministers (hereinafter referred to as "the council"); - a court of justice; - a court of auditors. the commission shall be assisted by a consultative committee." ) the following articles shall be inserted: "article . the commission shall consist of seventeen members, who shall be chosen on the grounds of their general competence and whose independence is beyond doubt. the number of members of the commission may be altered by the council, acting unanimously. only nationals of the member states may be members of the commission. the commission must include at least one national of each of the member states, but may not include more than two members having the nationality of the same state. . the members of the commission shall, in the general interest of the community, be completely independent in the performance of their duties. in the performance of these duties, they shall neither seek nor take instructions from any government or from any other body. they shall refrain from any action incompatible with their duties. each member state undertakes to respect this principle and not to seek to influence the members of the commission in the performance of their tasks. the members of the commission may not, during their term of office, engage in any other occupation whether gainful or not. when entering upon their duties they shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom and in particular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits. in the event of any breach of these obligations, the court of justice may, on application by the council or the commission, rule that the member concerned be, according to the circumstances, either compulsorily retired in accordance with article a or deprived of his right to a pension or other benefits in its stead. article . the members of the commission shall be appointed in accordance with the procedure referred to in paragraph , for a period of five years, subject, if need be, to article . their term of office shall be renewable. . the governments of the member states shall nominate by common accord, after consulting the european parliament, the person they intend to appoint as president of the commission. the governments of the members states shall, in consultation with the nominee for the president, nominate the other persons whom they intend to appoint as members of the commission. the president and the other members of the commission thus nominated shall be subject as a body to a vote of approval by the european parliament. after approval by the european parliament, the president and the other members of the commission shall be appointed by common accord of the member states. . paragraphs and shall be applied for the first time to the president and the other members of the commission whose term of office begins on january . the president and the other members of the commission whose term of office beings on january shall be appointed by common accord of the governments of the member states. their term of office shall expire on january . article the commission may appoint a vice-president or two vice-presidents from among its members. article apart from normal replacement, or death, the duties of a member of the commission shall end when he resigns or is compulsorily retired. the vacancy thus caused shall be filled for the remainder of the members term of office by a new member appointed by common accord of the governments of the member states. the council may, acting unanimously, decide that such a vacancy need not be filled. in the event of resignation, compulsory retirement or death, the president shall be replaced for the remainder of his term of office. the procedure laid down in article ( ) shall be applicable for the replacement of the president. save in the case of compulsory retirement under article a, members of the commission shall remain in office until they have been replaced. article a if any member of the commission no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the court of justice may, on application by the council or the commission, compulsorily retire him. article the commission shall act by a majority of the number of members provided for in article . a meeting of the commission shall be valid only if the number of members laid down in its rules of procedure is present." ) article shall be replaced by the following: "article the commission shall make all appropriate administrative arrangements for the operation of its departments. it may set up study committees, including an economic study committee. the council and the commission shall consult each other and shall settle by common accord their methods of co-operation. the commission shall adopt its rules of procedure so as to ensure that both it and its departments operate in accordance with the provisions of this treaty. it shall ensure that these rules are published." ) the following article shall be inserted: "article the commission shall publish annually, not later than one month before the opening of the session of the european parliament, a general report on the activities of the community." ) the following subparagraph shall be added to article : "the council shall, acting by a qualified majority, determine any payment to be made instead of remuneration." ) the following articles shall be inserted: "article a the european parliament may, acting by a majority of its members, request the commission to submit any appropriate proposal on matters which it considers that a community act is required for the purpose of implementing this treaty. article b in the course of its duties, the european parliament may, at the request of a quarter of its members, set up a temporary committee of inquiry to investigate, without prejudice to the powers conferred by this treaty on other institutions or bodies, alleged contraventions or maladministration in the implementation of community law, except where the alleged facts are being examined before a court and while the case is still subject to legal proceedings. the temporary committee of inquiry shall cease to exist on the submission of its report. the detailed provisions governing the exercise of the right of inquiry shall be determined by common accord of the european parliament, the council, and the commission. article c any citizen of the union, and any natural or legal person residing or having its registered office in a member state, shall have the right to address, individually or in association with other citizens or persons, a petition to the european parliament on a matter which comes within the community's field's of activity and which affects him, her or it directly. article d . the european parliament shall appoint an ombudsman empowered to receive complaints from any citizen of the union or any natural or legal person residing or having its registered office in a member state concerning instances of maladministration in the activities of the community institutions or bodies, with the exception of the court of justice and the court of first instance acting in their judicial role. in accordance with his duties, the ombudsman shall conduct enquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a member of the european parliament, except where the alleged facts are or have been the subject of legal proceedings. where the ombudsman establishes an instance of maladministration, he shall refer the matter to the institution concerned, which shall have a period of three months in which to inform him of its views. the ombudsman shall then forward a report to the european parliament, and the institution concerned. the person lodging the complaint shall be informed of the outcome of such inquiries. the ombudsman shall submit an annual report to the european parliament on the outcome of his inquiries. . the ombudsman shall be appointed after each election of the european parliament for the duration of its term of office. the ombudsman shall be eligible for reappointment. the ombudsman may be dismissed by the court of justice at the request of the european parliament if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct. . the ombudsman shall be completely independent in the performance of his duties. in the performance of those duties he shall neither seek nor take instructions from any body. the ombudsman may not, during his term of office, engage in any other occupation, whether gainful or not. . the european parliament shall, after seeking an opinion from the commission and with the approval of the council acting by a qualified majority, lay down the regulations and general conditions governing the performance of the ombudsman's duties." ) paragraph of article shall be replaced by the following: " . the european parliament shall draw up proposals for elections by direct universal suffrage in accordance with a uniform procedure in all member states. the council shall, acting unanimously after obtaining the assent of the european parliament, which shall act by a majority of its component members, lay down the appropriate provisions, which it shall recommend to member states for adoption in accordance with their respective constitutional requirements." ) article shall be replaced by the following: "article the european parliament shall discuss in open session the general report submitted to it by the commission. if a motion of censure on the activities of the commission is tabled before it, the european parliament shall not vote thereon until at least three days after the motion has been tabled and only by open vote. if a motion of censure is carried by a two-thirds majority of the votes cast, representing a majority of the members of the european parliament, the members of the commission shall resign as a body. they shall continue to deal with current business until they are replaced in accordance with article . in this case, the term of office the members of the commission appointed to replace them shall expire on the date on which the term of office of the members of the commission obliged to resign as a body would have expired." ) the following articles shall be inserted: "article the council shall consist of a representative of each member state at a ministerial level, authorized to commit the government of that member state. the office of president shall be held in turn by each member state in the council for a term of six months, in the following order of member states: - for a first cycle of six years: belgium, denmark, germany, greece, spain, france, ireland, italy, luxembourg, netherlands, portugal, united kingdom; - for the following cycle of six years: denmark, belgium, greece, germany, france, spain, italy, ireland, netherlands, luxembourg, united kingdom, portugal. article a the council shall meet when convened by its president on his own initiative or at the request of one of its members or of the commission." ) the following article shall be inserted: "article the council shall, acting by a qualified majority, determine the salaries, allowances and pensions of the president and members of the commission, and of the president, judges, advocates-general and registrar of the court of justice. it shall also, again by a qualified majority, determine any payment to be made instead of remuneration, article . a committee consisting of the permanent representatives of the member states shall be responsible for preparing the work of the council and for carrying out the tasks assigned to it by the council. . the council shall be assisted by a general secretariat, under the direction of a secretary general. the secretary-general shall be appointed by the council acting unanimously. the council shall decide on the organization of the general secretariat. . the council shall adopt its rules of procedure." ) article shall be replaced by the following; "article the court of justice shall consist of thirteen judges. the court of justice shall sit in plenary session. it may, however, form chambers, each consisting of three or five judges, either to undertake certain preparatory inquiries, or to adjudicate on particular categories of cases in accordance with the rules laid down for these purposes. the court of justice shall sit in plenary session when a member state or a community institution that is a party to the proceedings so requests. should the court of justice so request, the council may, acting unanimously, increase the number of judges and make the necessary adjustments to the second and third paragraphs of this article and to the second paragraph of article b." ) article d shall be replaced by the following: "article d . a court of first instance shall be attached to the court of justice with jurisdiction to hear and determine at first instance, subject to a right of appeal to the court of justice on points of law only and in accordance with the conditions laid down by the statute, certain classes of action or proceeding defined in accordance with the conditions laid down by the statute, certain classes of action or proceeding defined in accordance with the conditions laid down in paragraph . the court of first instance shall not be competent to hear and determine questions referred for a preliminary ruling under article . . at the request of the court of justice and after consulting the european parliament and the commission, the council, acting unanimously, shall determine the classes of action or proceeding referred to in paragraph , and the composition of the court of first instance and shall adopt the necessary adjustments and additional provisions to the statute of the court of justice. unless the council decides otherwise, the provisions of this treaty relating to the court of justice, in particular the provisions of the protocol on the statute of the court of justice, shall apply to the court of the first instance. . the members of the court of first instance shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to judicial office; they shall be appointed by common accord of the governments of the member states for a term of six years. the membership shall be partially renewed every three years. retiring members shall be eligible for re- appointment. . the court of first instance shall establish its rules of procedure in agreement with the court of justice. those rules shall require the unanimous approval of the council." ) article shall be replaced by the following: "article the court of justice shall have jurisdiction in actions brought by a member state or by the council to have decisions or recommendations of the commission declared void on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this treaty or of any rule of law relating to its application, or misuse of powers. the court of justice may not, however, examine the evaluation of the situation, resulting from economic facts or circumstances, in the light of which the commission took its decisions or made its recommendations, save where the commission is alleged to have misused its powers or to have manifestly failed to observe the provisions of the treaty or any rule of law relating to its application. undertakings or associations referred to in article may, under the same conditions, institute proceedings against decisions or recommendations concerning them which are individual in character or against general decisions or recommendations which they consider to involve a misuse of powers affecting them. the proceedings provided for in the first two paragraphs of this article shall be instituted within one month of the notification or publication, as the case may be, of the decision or recommendation. the court of justice shall have jurisdiction under the same conditions in actions brought by the european parliament for the purpose of protecting its prerogatives." ) the following chapter shall be inserted: "chapter v the court of auditors article a the court of auditors shall carry out the audit. article b . the court of auditors shall consist of twelve members. . the members of the court of auditors shall be chosen from among persons who belong or have belonged in their respective countries to external audit bodies or who are especially qualified for this office. their independence must be beyond doubt. . the members of the court of auditors shall be appointed for a term of six years by the council, acting unanimously after consulting the european parliament. however, when the first appointments are made, four members of the court of auditors, chosen by lot, shall be appointed for a term of office of four years only. the members of the court of auditors shall be eligible for reappointment. they shall elect the president of the court of auditors from among their number for a term of three years. the president may be re-elected. . the members of the court of auditors shall, in the general interest of the community, be completely independent in the performance of their duties. in the performance of these duties, they shall neither seek nor take instructions from any government or from any other body. they shall refrain from any action incompatible with their duties. . the members of the court of auditors may not, during their term of office, engage in any other occupation, whether gainful or not. when entering upon their duties they shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom and in particular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits. . apart from normal replacement, or death, the duties of a member of the court of auditors shall end when he resigns, or is compulsorily retired by a ruling of the court of justice pursuant to paragraph . the vacancy thus caused shall be filled for the remainder of the member's term of office. save in the case of compulsory retirement, members of the court of auditors shall remain in office until they have been replaced. . a member of the court of auditors may be deprived of his office or of his right to a pension or other benefits in its stead only if the court of justice, at the request of the court of auditors, finds that he no longer fulfills the requisite conditions or meets the obligations arising from his office. . the council, acting by a qualified majority, shall determine the conditions of employment of the president and the members of the court of auditors and in particular their salaries, allowances and pensions. it shall also, by the same majority, determine any payment to be made instead of remuneration. . the provisions of the protocol on the privileges and immunities of the european communities applicable to the judges of the court of justice shall also apply to the members of the court of auditors. article c . the court of auditors shall examine the accounts of all revenue and expenditure of the community. it shall also examine the accounts of all revenue and expenditure of all bodies set up by the community in so far as the relevant constituent instrument does not preclude such examination. the court of auditors shall provide the european parliament and the council with a statement of assurance as to the reliability of the accounts and the legality and regularity of the underlying transactions. . the court of auditors shall examine whether all revenue referred to in paragraph has been received and all expenditure referred to in that paragraph has been incurred in a lawful and regular manner and whether the financial management has been sound. the audit of revenue shall be carried out on the basis of the amounts established as due and the amounts actually paid to the community. the audit of expenditure shall be carried out on the basis both of commitments undertaken and payments made. these audits may be carried out before the closure of accounts for the financial year in question. . the audit shall be based on records and, if necessary, performed on the spot in the other institutions of the community and in the member states. in the member states the audit shall be carried out in liaison with the national audit bodies or, if these do not have the necessary powers, with the competent national departments. theses bodies or departments shall inform the court of auditors whether they intend to take part in the audit. the other institutions of the community and the national audit bodies or, if these do not have the necessary powers, the competent national departments, shall forward to the court of auditors, at its request, any document or information necessary to carry out its task. . the court of auditors shall draw up an annual report after the close of each financial year. it shall be forwarded to the other institutions of the community and shall be published, together with the replies of these institutions to the observations of the court of auditors, in the official journal of the european communities. the court of auditors may also, at any time, submit observations, particularly in the form of special reports, on specific questions and deliver opinions at the request of one of the other institutions of the community. it shall adopt its annual reports, special reports or opinions by a majority of its members. it shall assist the europe and parliament and the council in exercising their powers of control over the implementation of the budget. . the court of auditors shall also draw up a separate annual report stating whether the accounting other than that for the expenditure and revenue referred to in paragraph and the financial management by the commission relating thereto have been effected in a regular manner. it shall draw up this report within six months of the end of the financial year to which the accounts refer and shall submit it to the commission and the council. the commission shall forward it to the european parliament." ) article c shall be replaced by the following: "article c the commission shall implement the administrative budget, in accordance with the provisions of the regulations made pursuant to article h, on its own responsibility and within the limits of the appropriations, having regard to the principles of sound financial management. the regulations shall lay down detailed rules for each institution concerning its part in effecting its own expenditure. within the administrative budget, the commission may, subject to the limits and conditions laid down in the regulations made pursuant to article h, transfer appropriations from one chapter to another or from one subdivision to another." ) articles e and f shall be repealed. ) article g shall be replaced by the following: "article g . the european parliament, acting on a recommendation from the council, which shall act by a qualified majority, shall give a discharge to the commission in respect of the implementation of the administrative budget. to this end, the council and the european parliament in turn shall examine the account and the financial statement referred to in article d, the annual report by the court of auditors together with the replies of the institutions under audit to the observations of the court of auditors, and any relevant special reports by the court of auditors. . before giving a discharge to the commission, or for any other purpose in connection with the exercise of its powers over the implementation of the administrative budget, the european parliament may ask to hear the commission give evidence with regard to the execution of expenditure or the operation of financial control systems. the commission shall submit any necessary information to the european parliament at the latter's request. . the commission shall take all appropriate steps to act on the observations in the decisions giving discharge on other observations by the european parliament relating to the execution of expenditure, as well as on comments accompanying the recommendations on discharge adopted by the council. at the request of the european parliament or council, the commission shall report on the measures taken in the light of these observations and comments and in particular on the instructions given to the departments which are responsible for the implementation of the administrative budget. these reports shall also be forwarded to the court of auditors." ) article h shall be replaced by the following: "article h the council, acting unanimously on a proposal from the commission and after consulting the european parliament and obtaining the opinion of the court of auditors, shall: a) make financial regulations specifying in particular the procedure to be adopted for establishing the implementing the administrative budget and for presenting and auditing accounts; b) determine the methods and procedure whereby the budget revenue provided under the arrangements relating to the communities' own resources shall be made available to the commission, and determine the measures to be applied, if need be, to meet cash requirements; c) lay down rules concerning the responsibility of financial controllers, authorizing officers and accounting officers, and concerning appropriate arrangements for inspection." ) the following article shall be inserted: "article i member states shall take the same measures to counter fraud affecting the financial interests of the community as they take to counter fraud affecting their own financial interests. without prejudice to other provisions of this treaty, member states shall co-ordinate their action aimed at protecting the financial interests of the community against fraud. to this end they shall organize, with the help of the commission, close and regular co-operation between the competent departments of their administrations." ) article (a) shall be replaced by the following: "(a) this treaty shall not apply to the faroe islands." ) articles and shall be repealed. title provisions amending the treaty establishing the european atomic energy community article the treaty establishing european atomic energy community shall be amended in accordance with the provisions of this article. ) article shall be replaced by the following: "article ) the tasks entrusted to the community shall be carried out by the following institutions: - a european parliament, - a council, - a commission, - a court of justice, - a court of auditors. each institution shall act within the limits of the powers conferred upon it by this treaty. . the council and the commission shall be assisted by an economic and social committee acting in an advisory capacity." ) the following articles shall be inserted: "article a the european parliament may, acting by a majority of its members, request the commission to submit any appropriate proposal on matters on which it considers that a community act is required for the purpose of implementing this treaty. article b in the course of its duties, the european parliament may, at the request of a quarter of its members, set up a temporary committee of inquiry to investigate, without prejudice to the powers conferred by this treaty on other institutions or bodies, alleged contraventions or maladministration in the implementation of community law, except where the alleged facts are being examined before a court and while the case is still subject to legal proceedings. the temporary committee of inquiry shall cease to exist on the submission of its report. the detailed provisions governing the exercise of the right of inquiry shall be determined by common accord of the european parliament, the council and the commission. article c any citizen of the union, and any natural or legal person residing or having its registered office in a member state, shall have the right to address, individually or in association with other citizens or persons, a petition to the european parliament on a matter which comes within the community's fields of activity and which affects him, her or it directly. article d . the european parliament shall appoint an ombudsman empowered to receive complaints from any citizen of the union or any natural or legal person residing or having its registered office in a member state concerning instances of maladministration in the activities of the community institutions or bodies, with the exception of the court of justice and the court of first instance acting in their judicial role. in accordance with his duties, the ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a member of the european parliament, except where the alleged facts are or have been the subject of legal proceedings. where the ombudsman establishes an instance of maladministration, he shall refer the matter to the institution concerned. the person lodging the complaint shall be informed of the outcome of such inquiries. the ombudsman shall submit an annual report to the european parliament on the outcome of his inquiries. . the ombudsman shall be appointed after each election of the european parliament for the duration of its term of office. the ombudsman shall be eligible for reappointment. the ombudsman may be dismissed by the court of justice at the request of the european parliament if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct. . the ombudsman shall be completely independent in the performance of his duties. in the performance of those duties he shall neither seek nor take instructions form any body. the ombudsman may not, during his term of office, engage in any other occupation, whether gainful or not. . the european parliament shall, after seeking an opinion from the commission and with the approval of the council acting by a qualified majority, lay down the regulations and general conditions governing the performance of the ombudsman's duties." ) paragraph of article shall be replaced by the following: " . the european parliament shall draw up proposals for elections by direct universal suffrage in accordance with a uniform procedure in all member states. the council shall, acting unanimously after obtaining the assent of the european parliament, which shall act by a majority of its component members, lay down the appropriate provisions, which it shall recommend to member states for adoption in accordance with their respective constitutional requirements." ) the second subparagraph of article shall be supplemented by the following sentence: "in this case, the term of office of the members of the commission appointed to replace them shall expire on the date on which the term of office of the members of the commission obliged to resign as a body would have expired." ) the following articles shall be inserted: "article the council shall consist of a representative of each member state at ministerial level, authorized to commit the government of that member state. the office of president shall be held in turn by each member state in the council for a term of six months, in the following order of member states. - for a first cycle of six years: belgium, denmark, germany, greece, spain, france, ireland, italy, luxembourg, netherlands, portugal, united kingdom. - for the following cycle of six years: denmark, belgium, greece, germany, france, spain, italy, ireland, netherlands, luxembourg, united kingdom, portugal. article the council shall meet when convened by its president on his own initiative or at the request of one of its members or of the commission." ) the following article shall be inserted: "article . a committee consisting of the permanent representatives of the member states shall be responsible for preparing the work of the council and for carrying out the tasks assigned to it by the council. . the council shall be assisted by a general secretariat, under the direction of a secretary-general. the secretary-general shall be appointed by the council acting unanimously. the council shall decide on the organization of the general secretariat. . the council shall adopt its rules of procedure." ) the following article shall be inserted: "article the council shall, acting by a qualified majority, determine the salaries, allowances and pensions of the president and members of the commission, and of the president, judges, advocates-general and registrar of the court of justice. it shall also, again by a qualified majority, determine any payment to be made instead of remuneration." ) the following articles shall be inserted; "article the commission shall publish annually, not later than one month before the opening of the session of the european parliament, a general report on the activities of the community. article . the commission shall consist of seventeen members, who shall be chosen on the grounds of their general competence and whose independence is beyond doubt. the number of members of the commission may be altered by the council, acting unanimously. only nationals of the member states may be members of the commission. the commission must include at least one national of each of the member states, but may not include more than two members having the nationality of the same state. . the members of the commission shall, in the general interest of the community, be completely independent in the performance of their duties. in the performance of these duties, they shall neither seek nor take instructions from any government or from any other body. they shall refrain from any action incompatible with their duties. each member state undertakes to respect this principle and not to seek to influence the members of the commission in the performance of their tasks. the members of the commission may not, during their term of office, engage in any other occupation, whether gainful or not. when entering upon their duties they shall give a solemn undertaking that, both during and after their term or office, they will respect the obligations arising therefrom and in particular their duty to behave with integrity and discretion as regards the acceptance after they have ceased to hold office, of certain appointments or benefits. in the event of any breach of these obligations arising therefrom and in particular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits. in the event of any breach of these obligations, the court of justice may, on application by the council or the commission, rule that the member concerned be, according to the circumstances, either compulsorily retired in accordance with article or deprived of his right to a pension or other benefits in its stead. article . the members of the commission shall be appointed, in accordance with the procedure referred to in paragraph , for a period of five years, subject, if need be, to article . their term of office shall be renewable. . the governments of the member states shall nominate by common accord, after consulting the european parliament, the person they intend to appoint as president of the commission. the governments of the member states shall, in consultation with the nominee for president, nominate the other persons whom they intend to appoint as members of the commission. the president and other members of the commission thus nominated shall be subject as a body to a vote of approval by the european parliament. after approval by the european parliament, the president and the other members of the commission shall be appointed by common accord of the governments of the member states. . paragraphs and shall be applied for the first time to the president and other members of the commission whose term of office begins on january . the president and the other members of the commission whose term of office begins on january shall be appointed by common accord of the governments of the member states. their term of office shall expire on january . article apart from normal replacement, or death, the duties of a member of the commission shall end when he resigns or is compulsorily retired. the vacancy thus caused shall be filled for the remainder of the member's term of office by a new member appointed by common accord of the governments of the member states. the council may, acting unanimously, decide that such a vacancy need not be filled. in the event of resignation, compulsory retirement or death, the president shall be replaced for the remainder of his term of office. the procedure laid down in article ( ) shall be applicable for the replacement of the president. save in the case of compulsory retirement under article , members of the commission shall remain in office until they have been replaced. article if any member of the commission no longer fulfills the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the court of justice may, on application by the council or commission, compulsorily retire him. article the commission may appoint a vice-president or two vice-presidents from among its members. article the council and the commission shall consult each other and shall settle by common accord their methods of co-operation. the commission shall adopt its rules of procedure so as to ensure that both it and its departments operate in accordance with the provisions of the treaty. it shall ensure that these rules are published. article the commission shall act by a majority of the number of members provided for in article . a meeting of the commission shall be valid only if the number of members laid down in its rules of procedure is present." ) article shall be repealed. ) article shall be replaced by the following: "article the court of justice shall consist of thirteen judges. the court of justice shall sit in plenary session. it may, however, form chambers, each consisting of three or five judges, either to undertake certain preparatory inquiries or to adjudicate on particular categories of cases in accordance with the rules laid down for these purposes. the court of justice shall sit in plenary session when a member state or a community institution that is a party to the proceedings so requests. should the court of justice so request, the council may, acting unanimously, increase the number of judges and make the necessary adjustments to the second and third paragraphs of this article ." ) article a shall be replaced by the following: "article a . a court of first instance shall be attached to the court of justice with jurisdiction to hear and determine at first instance, subject to a right of appeal to the court of justice on points of law only and in accordance with the conditions laid down by the statute, certain classes of action or proceeding defined in accordance with the conditions laid down in paragraph . the court of first instance shall not be competent to hear and determine questions referred for a preliminary ruling under article . . at the request of the court of justice and after consulting the european parliament and the commission, the council, acting unanimously, shall determine the classes of action or proceeding referred to in paragraph and the composition of the court of first instance and shall adopt the necessary adjustments and additional provisions to the statute of the court of justice. unless the council decides otherwise, the provisions of this treaty relating to the court of justice, in particular the provisions of the protocol on the statute of the court of justice, shall apply to the court of the first instance. . the members of the court of first instance shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to judicial office; they shall be appointed by common accord of the governments of the member states for a term of six years. the membership shall be partially renewed every three years. retiring members shall be eligible for re- appointment. . the court of first instance shall establish its rules of procedure in agreement with the court of justice. those rules shall require the unanimous approval of the council." ) article shall be replaced by the following: "article . if the court of justice finds that a member state has failed to fulfil an obligation under this treaty, the state shall be required to take the necessary measures to comply with the judgment of the court of justice. . if the commission considers that the member state concerned has not taken such measures it shall, after giving that state the opportunity to submit its observations, issue a reasoned opinion specifying the points which the member state concerned has not complied with the judgment of the court of justice. if the member state concerned fails to take the necessary measures to comply with the court's judgment within the time-limit laid down by the commission, the latter may bring the case before the court of justice. in so doing it shall specify the amount of the lump sum or penalty payment to be paid by the member state concerned which it considers appropriate in the circumstances. if the court of justice finds that the member state concerned has not complied with its judgment it may impose a lump sum or penalty payment on it. this procedure shall be without prejudice to article ." ) article shall be replaced by the following: "article the court of justice shall review the legality of acts of the council and of the commission, other than recommendations and opinions, and of acts of the european parliament intended to produce legal effects vis- a-vis third parties. it shall for this purpose have jurisdiction in actions brought by a member state, the council or the commission on grounds of lack of competence, infringement of this treaty or of any rule of law relating to its application, or misuse of powers. the court shall have jurisdiction under the same conditions in actions brought by the european parliament for the purpose of protecting its prerogatives. any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. the proceedings provided for in this article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be." ) the following section shall be inserted; "section v the court of auditors article a the audit shall be carried out by the court of ~auditors. article b . the court of auditors shall consist of twelve members. . the members of the court of auditors shall be chosen from among persons who belong or have belonged in their respective countries to external audit bodies or who are especially qualified for this office. their independence must be beyond doubt. . the members of the court of auditors shall be appointed for a term of six years by the council, acting unanimously after consulting the european parliament. however, when the first appointments are made, four members of the court of auditors, chosen by lot, shall be appointed for a term of office of four years only. the members of the court of auditors shall be eligible for reappointment. they shall elect the president of the court of auditors from among their number for a term of three years. the president may be re-elected. . the members of the court of auditors shall, in the general interest of the community, be completely independent in the performance of their duties. in the performance of these duties, they shall neither seek nor take instructions from any government or from any other body. they shall refrain from any action incompatible with their duties. . the members of the court of auditors may not, during their term of office, engage in any other occupation, whether gainful or not. when entering upon their duties they shall give a solemn undertaking that, both during and after their term of office, they will respect the obligations arising therefrom and in particular their duty to behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits. . apart from normal replacement, or death, the duties of a member of the court of auditors shall end when he resigns, or is compulsorily retired by a ruling of the court of justice pursuant to paragraph . the vacancy thus caused shall be filled for the remainder of the member's term of office. save in the case of compulsory retirement, members of the court of auditors shall remain in office until they have been replaced. . a member of the court of auditors may be deprived of his office or of his right to a pension or other benefits in its stead only if the court of justice, at the request of the court of auditors, finds that he no longer fulfills the requisite conditions or meets the obligations arising from his office. . the council, acting by a qualified majority, shall determine the conditions of employment of the president and the members of the court of auditors and in particular their salaries, allowances and pensions. it shall also, by the same majority, determine any payment to be made instead of remuneration. . the provisions of the protocol on the privileges and immunities of the european communities applicable to the judges of the court of justice shall also apply to the members of the court of auditors. article c . the court of auditors shall examine the accounts of all revenue and expenditure of the community. it shall also examine the accounts of all revenue and expenditure of all bodies set up by the community insofar as the relevant constituent instrument does not preclude such examination. the court of auditors shall provide the european parliament and the council with a statement of assurance as to the reliability of the accounts and the legality and regularity of the underlying transactions. . the court of auditors shall examine whether all revenue has been received and all expenditure incurred in a lawful and regular manner and whether the financial management has been sound. the audit of revenue shall be carried out on the basis of the amounts established as due and the amounts actually paid to the community. the audit of expenditure shall be carried out on the basis both of commitments undertaken and payments made. these audits may be carried out before the closure of accounts for the financial year in question. . the audit shall be based on records and, if necessary, performed on the spot in the other institutions of the community and in the member states. in the member states the audit shall be carried out in liaison with the national audit bodies or, if these do not have the necessary powers, with the competent national departments. these bodies or departments shall inform the court of auditors whether they intend to take part in the audit. the other institutions of the community and the national audit bodies or, if these do not have the necessary powers, the competent national department, shall forward to the court of auditors, at its request, any document or information necessary to carry on its task. . the court of auditors shall draw up an annual report after the close of each financial year. it shall be forwarded to the other institutions of the community and shall be published, together with the replies of these institutions to the observations of the court of auditors, in the official journal of the european communities. the court of auditors may also, at any time, submit observations, particularly in the form of special reports, on specific questions and deliver opinions at the request of one of the other institutions of the community. it shall adopt its annual reports, special reports or opinions by a majority of its members. it shall assist the european parliament and the council in exercising their powers of control over the implementation of the budget." ) article shall be replaced by the following: "article the number of members of the economic and social committee shall be as follows: belgium denmark germany greece spain france ireland italy luxembourg netherlands portugal united kingdom the members of the committee shall be appointed by the council, acting unanimously, for four years. their appointment shall be renewable. the members of the committee may not be bound by any mandatory instructions. they shall be completely independent in the performance of their duties, in the general interest of the community. the council, acting by qualified majority, shall determine the allowances of the members of the committee." shall be replaced by the following; "article the committee shall elect its chairman and officers from among its members for a term of two years. it shall adopt its rules of procedure. the committee shall be convened by its chairman at the request of the council or of the commission. it may also meet on its own initiative." ) article shall be replaced by the following: "article the committee must be consulted by the council or by the commission where this treaty so provides. the committee may be consulted by these institutions in all cases in which they consider it appropriate. it may issue an opinion on its own initiative in cases in which it considers such action appropriate. the council or the commission shall, if it considers it necessary, set the committee, for the submission of its opinion, a time limit which may not be less than one month from the date on which the chairman receives notification to this effect. upon expiry of the time limit, the absence of an opinion shall not prevent further action. the opinion of the committee and that of the specialized section, together with a record of the proceedings, shall be forwarded to the council and to the commission." ) paragraphs to of article shall be repealed. ) article shall be replaced by the following: "article without prejudice to other revenue, the budget shall be financed wholly from own resources. the council, acting unanimously on a proposal from the commission and after consulting the european parliament, shall lay down provisions relating to the system of own resources of the community, which it shall recommend to the member states for adoption in accordance with their respective constitutional requirements." ) the following article shall be inserted: "article a with a view to maintaining budgetary discipline, the commission shall not make any proposal for a community act, or alter its proposals, or adopt any implementing measure which is likely to have appreciable implications for the budget without providing the assurance that that proposal or that measure is capable of being financed within the limit to the community's own resources arising under provisions laid down by the council pursuant to article ." ) article shall be replaced by the following: "article the commission shall implement the budgets, in accordance with the provisions of the regulations made pursuant to article , on its own responsibility and within the limits of the appropriations, having regard to the principles of sound financial management. the regulations shall lay down detailed rules for each institution concerning its part in effecting its own expenditure. within the budgets, the commission may, subject to the limits and conditions laid down in the regulations made pursuant to article , transfer appropriations from one chapter to another or from on subdivision to another." ) articles and a shall be repealed. ) article b shall be replaced by the following: "article b . the european parliament, acting on a recommendation from the council which shall act by a qualified majority, shall give a discharge to the commission in respect of the implementation of the budget. to this end, the council and the european parliament in turn shall examine the accounts and the financial statement referred to in article a, the annual report by the court of auditors together with the replies of the institutions under audit to the observations of the court of auditors, and any relevant special reports by the court of auditors. . before giving a discharge to the commission, or for any other purpose in connection with the exercise of its powers over the implementation of the budget, the european parliament may ask to hear the commission give evidence with regard to the execution of expenditure or the operation of financial control systems. the commission shall submit any necessary information to the european parliament at the latter's request. . the commission shall take all appropriate steps to act on the observations in the decisions giving discharge and on the other observations by the european parliament relating to the execution of expenditure, as well as on comments accompanying the recommendations on discharge adopted by the council. at the request of the european parliament or the council, the commission shall report on the measures taken in the light of these observations and comments and in particular of the instructions given to the departments which are responsible for the implementation of the budgets. these reports shall also be forwarded to the court of auditors." ) article shall be replaced by the following: "article the council, acting unanimously on a proposal from the commission and after consulting the european parliament and obtaining the opinion of the court of auditors, shall: (a) make financial regulations specifying in particular the procedure to be adopted for establishing and implementing the budget and for presenting and auditing accounts; (b) determine the methods and procedure whereby the budget revenue provided under the arrangements relating to the community's own resources shall be made available to the commission, and determine the measures to be applied, if need be, to meet cash requirements; (c) lay down rules concerning the responsibility of financial controllers, authorizing officers and accounting officers, and concerning appropriate arrangements for inspection." ) the following article shall be inserted: "article a member states shall take the same measures to counter fraud affecting the financial interests of the community as they take to counter fraud affecting their own financial interests. without prejudice to other provisions of this treaty, member states shall co-ordinate their actions aimed at protecting the financial interests of the community against fraud. to this end they shall organize, with the help of the commission, close and regular co- operation between the competent departments of their administrations." ) article )a) shall be replaced by the following: "(a) this treaty shall not apply to the faroe islands." ) article shall be replaced by the following: "article the community shall establish close co-operation with the organization for economic co-operation and development, the details of which shall be determined by common accord." ) articles and shall be repealed. ) article shall be replaced by the following: "article the community may conclude with one or more states or international organizations agreements establishing an association involving reciprocal rights and obligations, common action and special procedures. these agreements shall be concluded by the council, acting unanimously after consulting the european parliament. where such agreements call for amendments to this treaty, these amendments shall first be adopted in accordance with the procedure laid down in article n of the treaty on european union." title provisions on a common foreign and security policy article j a common foreign and security policy is hereby established which shall be governed by the following provisions. article j. . the union and its member states shall define and implement a common foreign and security policy, governed by the provisions of the title and covering all areas of foreign and security policy. . the objectives of the common foreign and security policy shall be: - to safeguard the common values, fundamental interests and independence of the union; - to strengthen the security of the union and its member states in all ways; - to preserve peace and strengthen international security, in accordance with the principles of the united nations charter as well as the principles of the helsinki final act and the objectives of the paris charter; - to promote international co-operation; - to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms. . the union shall pursue these objectives; - by establishing systematic co-operation between member states in the conduct of policy, in accordance with article j. ; - by gradually implementing, in accordance with article j. , joint action in the areas in which the member states have important interests in common. . the member states shall support the union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity. they shall refrain from any action which is contrary to the interests of the union or likely to impair its effectiveness as a cohesive force in international relations. the council shall ensure that these principles are complied with. article j. . member states shall inform and consult one another within the council on any matter of foreign and security policy of general interest in order to ensure that their combined influence is exerted as effectively as possible by means of concerted and convergent action. . whenever it deems it necessary, the council shall define a common position. member states shall ensure that their national policies conform on the common positions. . member states shall co-ordinate their action in international organizations and at international conferences. they shall uphold the common positions in such fora. in international organizations and at international conferences where not all the member states participate, those which do take part shall uphold the common positions. article j. the procedure for adopting joint action in matters covered by foreign and security policy shall be the following: . the council shall decide, on the basis of general guidelines from the european council, that a matter should be the subject of joint action. whenever the council decides on the principle of joint action, it shall lay down the specific scope, the union's general and specific objectives in carrying out such action, if necessary its duration, and the means, procedures and conditions for its implementation. . the council shall, when adopting the joint action and at any stage during its development, define those matters on which decisions are to be taken by a qualified majority. where the council is required to act by a qualified majority pursuant to the preceding subparagraph, the votes of its members shall be weighted in accordance with article ( ) of the treaty establishing the european community, and for their adoption, acts of the council shall require at least fifty-four votes in favour, cast by at least eight members. . if there is a change in circumstances having a substantial effect on a question subject to joint action, the council shall review the principles and objectives of that action and take the necessary decisions. as long as the council has not acted, the joint action shall stand. . joint actions shall commit the member states in the positions they adopt and in the conduct of their activity. . whenever there is any plan to adopt a national position or take national action pursuant to a joint action, information shall be provided in time to allow, if necessary, for prior consultations within the council. the obligation to provide prior information shall not apply to measures which are merely a national transposition of council decisions. . in cases of imperative need arising from changes in the situation and failing a council decision, member states may take the necessary measures as a matter of urgency having regard to the general objectives of the joint action. the member state concerned shall inform the council immediately of any such measures. . should there be any major difficulties in implementing a joint action, a member state shall refer them to the council which shall discuss them and seek appropriate solutions. such solutions shall not run counter to the objectives of the joint action or impair its effectiveness. article j. . the common foreign and security policy shall include all questions related to the security of the union, including the eventual framing of a common defence policy, which might in time lead to a common defence. . the union requests the western european union (weu), which is an integral part of the development of the union, to elaborate and implement decisions and actions of the union which have defence implications. the council shall, in agreement with the institutions of the weu, adopt the necessary practical arrangements. . issues having defence implications dealt with under this article shall not be subject to the procedures set out in article j. . . the policy of the union in accordance with this article shall not prejudice the specific character of the security and defence policy of certain member states and shall respect the obligations of certain member states under the north atlantic treaty and be compatible with the common security and defence policy established within that framework. . the provisions of this article shall not prevent the development of closer co-operation between two or more member states on a bilateral level, in the framework of the weu and the atlantic alliance, provided such co-operation does not run counter to or impede that provided for in this title. . with a view to furthering the objective of this treaty, and having in view the date of in the context of article xii of the brussels treaty, the provisions of this article may be revised as provided for in article n( ) on the basis of a report to be presented in by the council to the european council, which shall include an evaluation of the progress made and the experience gained until then. article j. . the presidency shall represent the union in matters coming within the common foreign and security policy. . the presidency shall be responsible for the implementation of common measures; in that capacity it shall in principle express the position of the union in international organizations and international conferences. . in the tasks referred to in paragraphs and , the presidency shall be assisted if needs be by the previous and next member states to hold the presidency. the commission shall be fully associated in these tasks. . without prejudice to article j. ( ) and article j. ( ), member states represented in international organizations or international conferences where not all the member states participate shall keep the latter informed of any matter of common interest. member states which are also members of the united nations security council will concert and keep the other member states fully informed. member states which are permanent members of the security council will, in the execution of their functions, ensure the defence of the positions and the interests of the union, without prejudice to their responsibilities under the provisions of the united nations charter. article j. the diplomatic and consular missions of the member states and the commission delegations in third countries and international conferences, and their representations to international organizations, shall co-operate in ensuring that the common positions and common measures adopted by the council are complied with and implemented. they shall step up co-operation by exchanging information, carrying out joint assessments and contributing to the implementation of the provisions referred to in article c of the treaty establishing the european community. article j. the presidency shall consult the european parliament on the main aspects and the basic choices of the common foreign and security policy and shall ensure that the views of the european parliament are duly taken into consideration. the european parliament shall be kept regularly informed by the presidency and the commission of the development of the union's foreign and security policy. the european parliament may ask questions of the councils or make recommendations to it. it shall hold an annual debate on progress in implementing the common foreign and security policy. article j. . the european council shall define the principles of and general guidelines for the common foreign and security policy. . the council shall take the decisions necessary for defining and implementing the common foreign and security policy on the basis of the general guidelines adopted by the european council. it shall ensure the unity, consistency and effectiveness of action by the union. the council shall act unanimously, except for procedural questions and in the case referred to in article j. ( ). . any member state or the commission may refer to the council any question relating to the common foreign policy and may submit proposals to the council. . in cases requiring a rapid decision, the presidency, of its own motion, or at the request of the commission or a member state, shall convene an extraordinary council meeting within forty-eight hours or, in an emergency, within a shorter period. . without prejudice to article of the treaty establishing the european community, a political committee consisting of political directors shall monitor the international situation in the areas covered by common foreign and security policy and contribute to the definition of policies by delivering opinions to the council at the request of the council or on its own initiative. it shall also monitor the implementation of agreed policies, without prejudice to the responsibility of the presidency and the commission. article j. the commission shall be fully associated with the work carried out in the common foreign and security policy field. article j. on the occasion of any review of the security provisions under article j. , the conference which is convened to that effect shall also examine whether any other amendments need to be made to provisions relating to the common foreign and security policy. article j. . the provisions referred to in articles , , to , , , to , to and of the treaty establishing the european community shall apply to the provisions relating to the areas referred to in this title. . administrative expenditure which the provisions relating to the areas referred to in this title entail for the institutions shall be charged to the budget of the european communities. the council may also: - either decide unanimously that operational expenditure to which the implementation of those provisions gives rise is to be charged to the budget of the european communities; in that event, the budgetary procedure laid down in the treaty establishing the european community shall be applicable; - or determine that such expenditure shall be charged to the member states, where appropriate in accordance with a scale to be decided. title provisions on cooperation in the fields of justice and home affairs article k co-operation in the fields of justice and home affairs shall be governed by the following provisions. article k. for the purposes of achieving the objectives of the union, in particular the free movement of persons, and without prejudice to the powers of the european community, member states shall regard the following areas as matters of common interest: . asylum policy; . rules governing the crossing by persons of the external borders of the member states and the exercise of controls thereon; . immigration policy and policy regarding nationals of third countries; (a) conditions of entry and movement by nationals of third countries on the territory of member states; (b) conditions of residence by nationals of third countries on the territory of member states, including family reunion and access to employment; (c) combatting unauthorized immigration, residence and work by nationals of third countries on the territory of member states; . combating drug addiction in so far as this is not covered by to ; . combating fraud on an international scale in so far as this is not covered by to ; . judicial co-operation in civil matters; . judicial co-operation in criminal matters; . customs co-operation; . police co-operation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs co-operation, in connection with the organization of a union-wide system for exchanging information within a european police office (europol). article k. . the matters referred to in article k. shall be dealt with in compliance with the european convention for the protection of human rights and fundamental freedoms of november and the convention relating to the status of refugees of july and having regard to the protection afforded by member states to persons persecuted on political grounds. . this title shall not affect the exercise of the responsibilities incumbent upon member states with regard to the maintenance of law and order and the safeguarding of internal security. article k. . in the areas referred to in article k. , member states shall inform and consult one another within the council with a view to co-ordinating their action. to that end, they shall establish collaboration between the relevant departments of their administrations. . the council may: - on the initiative of any member state or of the commission, in the areas referred to in article k. ( ) to ( ); - on the initiative of any member state, in the areas referred to article k ( ) to ( ): (a) adopt joint positions and promote, using the appropriate form and procedures, any co-operation contributing to the pursuit of the objectives of the union; (b) adopt joint action in so far as the objectives of the union can be attained better by joint action than by the member states acting individually on account of the scale or effects of the action envisaged; it may decide that measures implementing joint action are to be adopted by a qualified majority; (c) without prejudice to article of the treaty establishing the european community, draw up conventions which it shall recommend to the member states for adoption in accordance with their respective constitutional requirements. unless otherwise provided by such conventions, measures implementing them shall be adopted within the council by a majority of two-thirds of the high contracting parties. such conventions may stipulate that the court of justice shall have jurisdiction to interpret their provisions and to rule on any disputes regarding their application, in accordance with such arrangements as they may lay down. article k. . a co-ordinating committee shall be set up consisting of senior officials. in additions to its co-ordinating role, it shall be the task of the committee to; - give opinions for the attention of the council, either at the councils request or on its own initiative; - contribute, without prejudice to article of the treaty establishing the european community, to the preparation of the council's discussions in the areas referred to in article k. and, in accordance with the conditions laid down in article d of the treaty establishing the european community, in the areas referred to in article c of that treaty. . the commission shall be fully associated with the work in the areas referred to in this title. . the council shall act unanimously, except on matters of procedure and in cases where article k. expressly provides for other voting rules. where the council is required to act by a qualified majority, the votes of its members shall be weighted as laid down in article ( ) of the treaty establishing the european community, and for their adoption, acts of the council shall require at least fifty-four votes in favour, cast by at least eight members. article k. within international organizations and at international conferences in which they take part, member states shall defend the common positions adopted under the provisions of this title. article k. the presidency and the commission shall regularly inform the european parliament of discussions in the areas covered by this title. the presidency shall consult the european parliament on the principal aspects of activities in the areas referred to in this title and shall ensure that the views of the european parliament are duly taken into consideration. the european parliament may ask questions of the council or make recommendations to it. each year, it shall hold a debate on the progress made in implementation of the areas referred to in this title. article k. the provisions of this title shall not prevent the establishment or development of closer co-operation between two or more member states in so far as such co-operation does not conflict with, or impede, that provided for in this title. article k. . the provisions referred to in article , , top , , , to , to and of the treaty establishing the european community shall apply to the provisions relating to the areas referred to in this title. . administrative expenditure which the provisions relating to the areas referred to in this title entail for the institutions shall be charged to the budget of european communities. the council may also: - either decide unanimously that operational expenditure to which the implementation of those provisions gives rise is to be charged to the budget of the european communities; in that event, the budgetary procedure laid down in the treaty establishing the european community shall be applicable; - or determine that such expenditure shall be charged to the member states, where appropriate in accordance with a scale to be decided. article k. the council, acting unanimously on the initiative of the commission or a member state, may decide to apply article c of the treaty establishing the european community to action in areas referred to in article k. ( ) to ( ), and at the same time determine the relevant voting conditions relating to it. it shall recommend the member states to adopt that decision in accordance with their respective constitutional requirements. title final provisions article l the provisions of the treaty establishing the european community, the treaty establishing the european coal and steel community and the treaty establishing the european atomic energy community concerning the powers of the court of justice of the european communities and the exercise of those powers shall apply only to the following provisions of this treaty: (a) provisions amending the treaty establishing the european economic community, the treaty establishing the european coal and steel community and the treaty establishing the european atomic energy community; (b) the third subparagraph of article k. ( )(c); (c) articles l to s. article m subject to the provisions amending the treaty establishing the european economic community with a view to establishing the european community, the treaty establishing the european coal and steel community and the treaty establishing the european atomic energy community, and to these final provisions, nothing in this treaty shall effect the treaties establishing the european communities or the subsequent treaties and acts modifying or supplementing them. article n . the government of any member state or the commission may submit to the council proposals for the amendment of the treaties on which the union is founded. if the council, after consulting the european parliament and, where appropriate, the commission, delivers an opinion in favour of calling a conference of representatives of the governments of the member states, the conference shall be convened by the president of the council for the purpose of determining by common accord the amendments to be made to those treaties. the european central bank shall also be consulted in the case of institutional changes in the monetary area. the amendments shall enter into force after being ratified by all the member states in accordance with their respective constitutional requirements. . a conference of representatives of the governments of the member states shall be convened in to examine those provisions of this treaty for which revision is provided, in accordance with the objectives set out in articles a and b. article o any european state may apply to become a member of the union. it shall address its application to the council, which shall act unanimously after consulting the commission and after receiving the assent of the european parliament, which shall act by an absolute majority of its component members. the conditions of admission and the adjustments to the treaties on which the union is founded which such admission entails shall be the subject of an agreement between the member states and the applicant state. this agreement shall be submitted for ratification by all the contracting states in accordance with their respective constitutional requirements. article p . articles to and to of the treaty establishing a single council and a single commission of the european communities, signed in brussels on april , are hereby repealed. . article , article ( ) and title iii of the single european act signed in luxembourg on february and in the hague on february are hereby repealed. article q this treaty is concluded for an unlimited period. article r . this treaty shall be ratified by the high contracting parties in accordance with their respective constitutional requirements. the instruments of ratification shall be deposited with the government of the italian republic. . this treaty shall enter into force on january , provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory state to take this step. article s this treaty, drawn up in a single original in the danish, dutch, english, french, german, greek, irish, italian, portuguese and spanish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the government of the italian republic, which will transmit a certified copy to each of the governments of the other signatory states. in witness whereof, the undersigned plenipotentiaries have signed this treaty. done at maastricht on the seventh day of february one thousand nine hundred and ninety two [ here follow the signatures ] protocol on the acquisition of property in denmark the high contracting parties, desiring to settle certain particular problems relating to denmark, having agreed upon the following provision, which shall be annexed to the treaty establishing the european community: notwithstanding the provisions of this treaty, denmark may maintain the existing legislation on the acquisition of second homes. protocol concerning article of the treaty establishing the european community the high contracting parties, have agreed upon the following provision, which shall be annexed to the treaty establishing the european community: for the purposes of article of this treaty, benefits under occupational social security schemes shall not be considered as remuneration if an in so far as they are attributable to periods of employment prior to may , except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law. protocol on the statute of the european system of central banks and of the european central bank the high contracting parties, desiring to lay down the statute of the european system of central banks and of the european central bank provided for in article a of the treaty establishing the european community. have agreed upon the following provisions, which shall be annexed to the treaty establishing the european community: chapter constitution of the escb article the european system of central banks. . . the european system of central banks (escb) and the european central bank (ecb) shall be established in accordance with article a of this treaty; they shall perform their tasks and carry on their activities in accordance with the provisions of this treaty of this statute. . . in accordance with article ( ) on this treaty, the escb shall be composed of the ecb and of the central banks of the member states ("national central banks"). the insitut monetaire luxembourgeois will be the central bank of luxembourg. chapter ii objectives and tasks of escb article objectives in accordance with article ( ) of this treaty, the primary objective of the escb shall be to maintain price stability. without prejudice to the objective of price stability, it shall support the general economic policies in the community with a view to contributing to the achievement of the objectives of the community as laid down in article of this treaty. the escb shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in article a of this treaty. article tasks . . in accordance with article ( ) of this treaty, the basic tasks to be carried out through the escb shall be: - to define and implement the monetary policy of the community; - to conduct foreign exchange operations consistent with the provisions of article of this treaty; - to hold and manage the official foreign reserves of the member states; - to promote the smooth operation on payment systems. . . in accordance with article ( ) of this treaty, the third indent of article . shall be without prejudice to the holding and management by the governments of member states of foreign exchange working balances. . . in accordance with article ( ) of this treaty, the escb shall contribute to the smooth conduct of policies pursued by the competent authorities relating to the prudential supervision of credit institutions and the stability of the financial system. article advisory functions in accordance with article ( ) of this treaty: (a) the ecb shall be consulted: - on any proposed community act in its fields of competence; - by national authorities regarding any draft legislative provision in its fields of competence, but within the limits and under the conditions set out by the council in accordance with the procedure laid down in article ; (b) the ecb may submit opinions to the appropriate community institutions or bodies or to national authorities on matters in its fields of competence. article collection of statistical information . . in order to undertake the tasks of the escb, the ecb, assisted by the national central banks, shall collect the necessary statistical information either from the competent national authorities or directly from economic agents. for these purposes it shall co-operate with the community institutions or bodies and with the competent authorities of the member states or third countries and with international organizations. . . the national central banks shall carry out, to the extent possible, the tasks described in article . . . . the ecb shall contribute to the harmonization, where necessary, of the rules and practices governing the collection, compilation and distribution of statistics in the areas within its fields of competence. . . the council, in accordance with the procedure laid down in article , shall define the natural and legal persons subject to reporting requirements, the confidentiality regime and the appropriate provisions for enforcement. article international co-operation . . in the field of international co-operation involving the tasks entrusted to the escb, the ecb shall decide how the escb shall be represented. . . the ecb and, subject to its approval, the national central banks may participate in international monetary institutions. . . articles . and . shall be without prejudice to article ( ) of this treaty. chapter iii organization of the escb article independence in accordance with article of this treaty, when exercising the powers and carrying out the tasks and duties conferred upon them by this treaty and this statute, neither the ecb, nor a national central bank, nor any member of their decision-making bodies shall seek or take instructions from community institutions or bodies, from any government of a member state or from any other body. the community institutions and bodies and the governments of the member states undertake to respect this principle and not to seek to influence the members of the decision-making bodies of the ecb or of the national central banks in the performance of their tasks. article general principle the escb shall be governed by the decision-making bodies of the ecb. article the european central bank . . the ecb which, in accordance with article ( ) of this treaty, shall have legal personality, shall enjoy in each of the member states the most extensive legal capacity accorded to legal persons under its law; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. . . the ecb shall ensure that the tasks conferred upon the escb under article ( ), ( ) and ( ) of this treaty are implemented either by its own activities pursuant to this statute or through the national central bank pursuant to articles . and . . in accordance with article ( ) of this treaty, the decision- making bodies of the ecb shall be the governing council and the executive board. article the governing council . . in accordance with article a( ) of this treaty, the governing council shall comprise the members of the executive board of the ecb and the governors of the national central banks. . . subject to article . , only members of the governing council present in person shall have the right to vote. by way of derogation from this rule, the rules of procedure referred to in article . may lay down that members of the governing council may cast their vote by means of teleconferencing. these rules shall also provide that a member of the governing council who is prevented from voting for a prolonged period may appoint an alternate as a member of the governing council. subject to articles . and . , each member of the governing council shall have one vote. save as otherwise provided for in this statue, the governing council shall act by a simple majority. in the event of a tie the president shall have the casting vote. in order for the governing council to vote, there shall be quorum of two-thirds of the members. if the quorum is not met, the president may convene and extraordinary meeting at which decisions may be taken without regard to the quorum. . . for any decisions to be taken under articles , , , , and , the votes in the governing council shall be weighted according to the national central banks' shares in the subscribed capital of the ecb. the weight of the votes of the members of the executive board shall be zero. a decision requiring a qualified majority shall be adopted if the votes cast in favour represent at least two thirds of the subscribed capital of the ecb and represent at least half of the shareholders. if a governor in unable to be present, he may nominate an alternate to cast his weighted vote. . . the proceedings of the meetings shall be confidential. the governing council may decide to make the outcome of its deliberations public. . . the governing council shall meet at least ten times a year. article the executive board . . in accordance with article a( )(a) of this treaty, the executive board shall comprise the president, the vice-president and four other members. the members shall perform their duties on a full-time basis. no member shall engage in any occupation, whether gainful or not, unless exemption is exceptionally granted by the governing council. . . in accordance with article a( )(b) of this treaty, the president, the vice-president and the other members of the executive board shall be appointed from among persons of recognized standing and professional experience in monetary or banking matters by common accord of the governments of the member states at the level of the heads of state or of government, on a recommendation from the council after it has consulted the european parliament and the governing council. their term of office shall be years and shall not be renewable. only nationals of member states may be members of the executive board. . . the terms and conditions of employment of the members of the executive board, in particular their salaries, pensions and other social security benefits shall be the subject of contracts with the ecb and shall be fixed by the governing council on a proposal from a committee comprising three members appointed by the governing council and three members appointed by the council. the members of the executive board shall not have the right to vote on matters referred to in this paragraph. . . if a member of the executive board no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the court of justice may, on application by the governing council or the executive board, compulsorily retire him. . . each member of the executive board present in person shall have the right to vote and shall have, for that purpose, one vote. save as otherwise provided, the executive board shall act by a simple majority of the votes cast. in the event of a tie, the president shall have the casting vote. the voting arrangements shall be specified in the rules of procedure referred to in article . . . . the executive board shall be responsible for the current business of the ecb. . . any vacancy on the executive board shall be filled by the appointment of a new member in accordance with article . . article responsibilities of the decision-making bodies . . the governing council shall adopt the guidelines and take the decisions necessary to ensure the performance of the tasks entrusted to the escb under this treaty and this statute. the governing council shall formulate the monetary policy of the community including, as appropriate, decisions relating to intermediate monetary objectives, key interest rates and the supply of reserves in the escb and shall establish the necessary guidelines for their implementation. the executive board shall implement monetary policy in accordance with the guidelines and decisions laid down by the governing council. in doing so the executive board shall give the necessary instructions to national central banks. in addition the executive board may have certain powers delegated to it where the governing council so decides. to the extent deemed possible and appropriate and without prejudice to the provisions of this article, the ecb shall have recourse to the national central banks to carry out operations which form part of the tasks of the escb. . . the executive board shall have the responsibility for the preparation of meetings of the governing council. . . the governing council shall adopt rules of procedure which determine the internal organization of the ecb and its decision-making bodies. . . the governing council shall exercise the advisory functions referred to article . . . the governing council shall take the decisions referred to article . article the president . . the president or, in his absence, the vice-president shall chair the governing council and the executive board of the ecb. . . without prejudice to article , the president or his nominee shall represent the ecb externally. article national central banks . . in accordance with article of this treaty, each member state shall ensure, at the latest at the date of the establishment of the escb, that its national legislation, including the statues of its national central bank, is compatible with this treaty and this statute. . . the statutes of the national central banks shall, in particular, provide that the term of office of a governor of a national central bank shall be no less than years. a governor may be relieved from office only if he no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct. a decision to this effect may be referred to the court of justice by the governor concerned or the governing council on grounds of infringement of this treaty or of any rule of law relating to its application. such proceedings shall be instituted within two months of the publication of the decision or of its notification to the plaintiff or, in the absence thereof, of the day on which it came to knowledge of the latter, as the case may be. . . the national central banks are an integral part of the escb and shall act in accordance with the guidelines and instructions of ecb. the governing council shall take the necessary steps to ensure compliance with the guidelines and instructions of the ecb, and shall require that any necessary information be given to it. . national central banks may perform functions other than those specified in this statute unless the governing council finds, by a majority of two thirds of the votes cast, that these interfere with the objectives and tasks of the escb. such functions shall be performed on the responsibility and liability of national central banks and shall not be regarded as being part of the functions of the escb. article reporting commitments. . . the ecb shall draw up and publish reports on the activities of the escb at least quarterly. . . a consolidated financial statement of the escb shall be published each week. . . in accordance with article b( ) of this treaty, the ecb shall address an annual report on the activities of the escb and on the monetary policy of both the previous and the current year to the european parliament, the council and the commission, and also the european council. . . the reports and statements referred to in this article shall be made available to interested parties free of charge. article bank notes. in accordance with article a( ) of this treaty, the governing council shall have the exclusive right to authorize the issue of bank notes within the community. the ecb and the national central banks may issue such notes. the bank notes issued by the ecb and the national central banks shall be the only such notes to have the status of legal tender within the community. the ecb shall respect as far as possible existing practices regarding the issue and design of bank notes. chapter iv monetary functions and operations of the escb article accounts with the ecb and the national central banks. in order to conduct their operations, the ecb and the national central banks may open accounts for credit institutions, public entities and other market participants and accept assets, including book-entry securities, as collateral. article open market and credit operations. . . in order to achieve the objectives of the escb and to carry out its tasks, the ecb and the national central banks may: - operate in the financial markets by buying and selling outright (spot or forward) or under repurchase agreement and by lending or borrowing claims and marketable instruments, whether in community or in non-community currencies, as well as precious metals; - conduct credit operations with credit institutions and other market participants, with lending being based on adequate collateral. . . the ecb shall establish general principles for open market and credit operations carried out by itself or the national central banks, including for the announcement of conditions under which they stand ready to enter into such transactions. article minimum reserves . . subject to article , the ecb may require credit institutions established in member states to hold minimum reserves on accounts with the ecb and national central banks in pursuance of monetary policy objectives. regulations concerning the calculation and determination of the required minimum reserves may be established by the governing council. in cases of non-compliance the ecb shall be entitled to levy penalty interest and to impose other sanctions with comparable effect. . . for the application of this article, the council shall, in accordance with the procedure laid down in article , define the basis for minimum reserves and the maximum reserves and the maximum permissible ratios between those reserves and their basis, as well as the appropriate sanctions in cases of non-compliance. article other instruments of monetary control the governing council may, by a majority of two thirds of the votes cast, decide upon the use of such other operational methods of monetary control as it sees fit, respecting article . the council shall, in accordance with the procedure laid down in article , define the scope of such methods if they impose obligations on third parties. article operations with public entities. . . in accordance with article of the treaty, overdrafts or any other type of credit facility with the ecb or with the national central banks in favour of community institutions or bodies, central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of member states shall be prohibited, as shall the purchase directly from them by the ecb or national central banks of debt instruments. . . the ecb and national central banks may act as fiscal agents for the entities referred to in . . . . the provisions of this article shall not apply to publicly-owned credit institutions which, in the context of the supply of reserves by central banks, shall be given the same treatment by national central banks and the ecb as private credit institutions. article clearing and payment systems the ecb and national central banks may provide facilities, and the ecb may make regulations, to ensure efficient and sound clearing and payment systems within the community and with other countries. article external operations the ecb and national central banks may: - establish relations with central banks and financial institutions in other countries and, where appropriate, with international organizations; - acquire and sell spot and forward all types of foreign exchange assets and precious metals; the term "foreign exchange asset" shall include securities and all other assets in the currency of any country or units of account in whatever form held; - hold and manage the assets referred to in this article; - conduct all types of banking transactions in relations with third countries and international organizations, including borrowing and lending operations. article other operations in addition to operations arising from their tasks, the ecb and national central banks may enter into operations for their administrative purposes or for their staff. chapter v prudential supervision article prudential supervision . . the ecb may offer advice to and be consulted by the council, the commission and the competent authorities of the member states on the scope and implementation of community legislation relating to the prudential supervision of credit institutions and to the stability of the financial system. . . in accordance with any decision of the council under article ( ) of this treaty, the ecb may perform specific tasks concerning policies relating to the prudential supervision of credit institutions and other financial institutions with the exception of insurance undertakings. chapter vi financial provisions of the escb article financial accounts . . the financial year of the ecb and national central banks shall begin on the first day of january and end on the last day of december. . . the annual accounts of the ecb shall be drawn up by the executive board, in accordance with the principles established by the governing council. the accounts shall be approved by the governing council and shall thereafter be published. . . for analytical and operational purposes, the executive board shall draw up a consolidated balance sheet of the escb, comprising those assets and liabilities of the national central banks that fall within the escb. . . for the application of this article, the governing council shall establish the necessary rules for standardizing the accounting and reporting of operations undertaken by the national central banks. article auditing . . the account of the ecb and national central banks shall be audited by independent external auditors recommended by the governing council and approved by the council. the auditors shall have full power to examine all books and accounts of the ecb and national central banks and obtain full information about their transactions. . . the provisions of article c of this treaty shall only apply to an examination of the operational efficiency of the management of the ecb. article capital of the ecb . . the capital of the ecb, which shall become operational upon its establishment, shall be ecu million. the capital may be increased by such amounts as may be decided by the governing council acting by the qualified majority provided for in article . , within the limits and under the conditions set by the council under the procedure laid down in article . . . the national central banks shall be the sole subscribers to and holders of the capital of the ecb. the subscription of capital shall be according to the key established in accordance with article . . . the governing council, acting by the qualified majority provided for in article . , shall determine the extent to which and the form in which the capital shall be paid up. . . subject to article . , the shares of the national central banks in the subscribed capital of the ecb may not be transferred, pledged or attached. . . if the key referred to in article is adjusted, the national central banks shall transfer among themselves capital shares to the extent necessary to ensure that the distribution of capital shares corresponds to the adjusted key. the governing council shall determine the terms and conditions of such transfers. article key for capital subscription . . when in accordance with the procedure referred to in article l( ) of this treaty the escb and the ecb have been established, the key for subscription of the ecb's capital shall be established. each national central bank shall be assigned a weighting in this key which shall be equal to the sum of: - % of the share of its respective member state in the population of the community in the penultimate year preceding the establishment of the escb; - % of the share of its respective member state in the gross domestic product at market prices of the community as recorded in the last five years preceding the penultimate year before the establishment of the escb; the percentages shall be rounded up to the nearest multiple . percentage points. . the statistical data to be used for the application of this article shall be provided by the commission in accordance with the rules adopted by the council under the procedure provided for in article . . . the weighting assigned to the national central banks shall be adjusted every five years after the establishment of the escb by analogy with the provisions laid down in article . . the adjusted key shall apply with effect from the first day of the following year. . . the governing council shall take all other measures necessary for the application of this article. article transfer of foreign reserve assets to the ecb . . without prejudice to article , the ecb shall be provided by the national central banks with foreign reserve assets, other than member states' currencies, ecus, imf reserve positions and sdrs, up to an amount equivalent to ecu million. the governing council shall decide upon the proportion to be called up by the ecb following its establishment and the amounts called up at later dates. the ecb shall have the full right to hold and manage the foreign reserves that are transferred to it and to use them for the purposes set out in this statute. . . the contributions of each national central bank shall be fixed in proportion to its share in the subscribed capital of the ecb. . . each national central bank shall be credited by the ecb with a claim equivalent to its contribution. the governing council shall determine the denomination and remuneration of such claims. . . further calls of foreign reserve assets beyond the limit set in article . . may be effected by the ecb, in accordance with article . , within the limits and under the conditions set by the council in accordance with the procedure laid down in article . . . the ecb may hold and manage imf reserve positions and sdrs and provide for the pooling of such assets. . . the governing council shall take all other measures necessary for the application of this article. article foreign reserve assets held by national central banks . . the national central banks shall be allowed to perform transactions in fulfilment of their obligations towards international organizations in accordance with article . . . all other operations in foreign reserve assets remaining with the national central banks after the transfers referred to in article , and member states' transactions with their foreign exchange working balances shall, above a certain limit to be established within the framework of article . , be subject to approval by the ecb in order to ensure consistency with the exchange rate and monetary policies of the community. . . the governing council shall issue guidelines with a view to facilitating such operations. article allocation of monetary income of national central banks. . . the income accruing to the national central banks in the performance of the escb's monetary policy function (hereinafter referred to as "monetary income") shall be allocated at the end of each financial year in accordance with the provisions of this article. . . subject to article . , the amount of each national central bank's monetary income shall be equal to its annual income derived from its assets held against notes in circulation and deposit liabilities to credit institutions. these assets shall be earmarked by national central banks in accordance with guidelines to be established by the governing council. . . if, after the start of the third stage, the balance sheet structures of the national central banks do not, in the judgment of the governing council, permit the application of article . , the governing council, acting by a qualified majority, may decide that, by way of derogation form article . , monetary income shall be measured according to an alternative method for a period of not more than five years. . . the amount of each national central bank's monetary income shall be reduced by an amount equivalent to any interest paid by that central bank on its deposit liabilities to credit institutions in accordance with article . the governing council may decide that national central banks shall be indemnified against costs incurred in connection with the issue of bank notes or in exceptional circumstances for specific losses arising from monetary policy operations undertaken for the escb. indemnification shall be in a form deemed appropriate in the judgment of the governing council; these amounts may be offset against the national central banks' monetary income. . . the sum of the national central banks' monetary income shall be allocated to the national central banks in proportion to their paid-up shares in the capital of the ecb, subject to any decision taken by the governing council pursuant to article . . . . the clearing and settlement of the balances arising from the allocation of monetary income shall be carried out by the ecb in accordance with guidelines established by the governing council. . . the governing council shall take all other measures necessary for the application of this article. article allocation of net profits and losses of the ecb . . the net profit of the ecb shall be transferred in the following order: (a) an amount to be determined by the governing council, which may not exceed % of the net profit, shall be transferred to the general reserve fund subject to a limit equal to a % of the capital; (b) the remaining net profit shall be distributed to the shareholders of the ecb in proportion to their paid-up shares. . . in the event of a loss incurred by the ecb, the shortfall may be offset against the general reserve fund of the ecb and, if necessary, following a decision by the governing council, against the monetary income of the relevant financial year in proportion and up to the amounts allocated to the national central banks in accordance with article . . chapter vii general provisions article legal acts . . in accordance with article a of this treaty, the ecb shall: - make regulations to the extent necessary to implement the tasks defined in article . ., first indent, articles . , or . and in cases which shall be laid down in the acts of the council referred to in article ; - take decisions necessary for carrying out the tasks entrusted to the escb under this treaty and this statute; - make recommendations and deliver opinions. . . a regulation shall have general application. it shall be binding in its entirety and directly applicable in all member states. recommendations and opinions shall have no binding force. a decision shall be binding in its entirety upon those to whom it is addressed. articles to of this treaty shall apply to regulations and decisions adopted by the ecb. the ecb may decide to publish its decisions, recommendations and opinions. . . within the limits and under the conditions adopted by the council under the procedure laid down in article , the ecb shall be entitled to impose fines or periodic penalty payments on undertakings for failure to comply with obligations under its regulations and decisions. article judicial control and related matters . . the acts or omissions of the ecb shall be open to review or interpretation by the court of justice in the cases and under the conditions laid down in this treaty. the ecb may institute proceedings in the cases and under the conditions laid down in this treaty. . . disputes between the ecb, on the one hand, and its creditors, debtors or any other person, on the other, shall be decided by the competent national courts, save where jurisdiction has been conferred upon the court of justice. . . the ecb shall be subject to the liability regime provided for in article of this treaty. the national central banks shall be liable according to their respective national laws. . . the court of justice shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the ecb, whether that contract be governed by public or private law. . . a decision of the ecb to bring an action before the court of justice shall be taken by the governing council. . . the court of justice shall have jurisdiction in disputes concerning the fulfillment by a national central bank of obligations under this statute. if the ecb considers that a national central bank has failed to fulfill an obligation under this statute, it shall deliver a reasoned opinion on the matter after giving the national central bank concerned the opportunity to submit its observations. if the national central bank concerned does not comply with the opinion within the period laid down by the ecb, the latter may bring the matter before the court of justice. article staff . . the governing council, on a proposal from the executive board, shall lay down the conditions of employment of the staff of the ecb. . . the court of justice shall have jurisdiction in any dispute between the ecb and its servants within the limits and under the conditions laid down in the conditions of employment. article seat before the end of , the decision as to where the seat of the ecb will be established shall be taken by common accord of the governments of the member states at the level of heads of state or of government. article professional secrecy . . members of the governing bodies and the staff of the ecb and the national central banks shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy. . . persons having access to data covered by community legislation imposing an obligation of secrecy shall be subject to such legislation. article signatories the ecb shall be legally committed to third parties by the president or by two members of the executive board or by the signatures of two members of the staff of the ecb who have been duly authorized by the president to sign on behalf of the ecb. article privileges and immunities. the ecb shall enjoy in the territories of the member states such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the protocol on the privileges and immunities of the european communities annexed to the treaty establishing a single council and a single commission of the european communities. chapter viii amendment of the statute and complementary legislation article simplified amendment procedure . . in accordance with article ( ) of this treaty, articles . , . , . , , , . , , , , , . , . , . , . , . (a) and of this statute may be amended by the council, acting either by a qualified majority on a recommendation from the ecb and after consulting the commission, or unanimously on a proposal from the commission and after consulting the ecb. in either case the assent of the european parliament shall be required. . . a recommendation made by the ecb under this article shall require a unanimous decision by the governing council. article complementary legislation in accordance with article ( ) of this treaty, immediately after the decision on the date for the beginning of the third stage, the council, acting by a qualified majority either on a proposal from the commission and after consulting the european parliament and the ecb or on a recommendation from the ecb and after consulting the european parliament and the commission, shall adopt the provisions referred to in articles , . , . , , . , . , . , and . . of this statute. chapter ix transitional and other provisions for the escb article general provisions . . a derogation as referred to in article k( ) of this treaty shall entail that the following articles of this statue shall not confer any rights or impose any obligations on the member state concerned: , , . , . , . , , , , , , , . , , , , , , , and . . . the central banks of member states with derogation as specified in article k( ) of this treaty shall retain their powers in the field of monetary policy according to national law. . . in accordance with article k( ) of this treaty, "member states" shall be read as "member states without derogation" in the following articles of this statute: , . , , . and . . "national central banks" shall be read as central banks of member states without a derogation" in the following articles of this statute: . , . , . , . , , , , , , , , , , . and . . . "shareholders" shall be read as "central banks of member states without a derogation" in articles . and . . . . "subscribed capital of the ecb" shall be read as "capital of the ecb subscribed by the central banks of member states without a derogation" in articles . and . . article transitional tasks of the ecb the ecb shall take over those tasks of the emi which, because of the derogations of one or more member states, still have to be performed in the third stage. the ecb shall give advice in the preparations for the abrogation of the derogations specified in article k of this treaty. article the general council of the ecb . . without prejudice to article ( ) of this treaty, the general council shall be constituted as a third decision-making body of the ecb. . . the general council shall compromise the president and vice- president of the ecb and the governors of the national central banks. the others members of the executive board may participate, without having the right to vote, in meetings of the general council. . . the responsibilities of the general council are listed in full in article of this statute. article rules of procedure of the general council . . the president or, in his absence, the vice-president of the ecb shall chair the general council of the ecb. . . the president of the council and a member of the commission may participate, without having to right to vote, meetings of the general council. . . the president shall prepare the meetings of the general council. . . by way of derogation from article . , the general council shall adopt its rules of procedure. . . the secretariat of the general council shall be provided by the ecb. article responsibilities of the general council . . the general council shall: - perform the tasks referred to in article ; - contribute to the advisory functions referred to in articles and . . . . the general council shall contribute to: - the collection of statistical information as referred to in article ; - the reporting activities of the ecb as referred to in article ; - the establishment of the necessary rules for the application of article as referred to in article . ; - the taking of all other measures necessary for the application of article as referred to article . ; - the laying down of the conditions of employment of the staff of the ecb as referred to in article . . . the general council shall contribute to the necessary preparations for irrevocably fixing the exchange rates of the currencies of member states with a derogations against the currencies, or the single currency, of the member states without a derogation, as referred to in article ( ) of this treaty. . . the general council shall be informed by the president of the ecb of decisions of the governing council. article transitional provisions for the capital of the ecb in accordance with article . each national central bank shall be assigned a weighting in the key for subscription of the ecb's capital. by way of derogation from article . , central banks of member states with a derogation shall not pay up their subscribed capital unless the general council, acting by as majority representing at least two thirds of the subscribed capital of the ecb and at least half of the shareholders, decides that a minimal percentage has to be paid up as a contribution to the operational costs of the ecb. article deferred payment of capital, reserves and provisions of the ecb . . the central bank of a member state whose derogation has been abrogated shall pay up its subscribed share of the capital of the ecb to the same extent as the central banks of other member states without a derogation, and shall transfer to the ecb foreign reserve assets in accordance with article . . the sum to be transferred shall be determined by multiplying the ecu value at current exchange rates of the foreign reserve assets which have already been transferred to the ecb in accordance with article . , by the ratio between the number of shares subscribed by the national central bank concerned and the number of shares already paid up by the other national central banks. . . in addition to the payment to be made in accordance with article . , the central bank concerned shall contribute to the reserves of the ecb, to those provisions equivalent to reserves, and to the amount still to be appropriated to the reserves and provisions corresponding to the balance of the profit and loss account as at december of the year prior to the abrogation of the derogation. the sum to be contributed shall be determined by multiplying the amount of the reserves, as defined above and as stated in the approved balance sheet of the ecb, by the ratio between the number of shares subscribed by the central bank concerned and the number of shares already paid up the other central banks. article initial appointment of the members of the executive board. when the executive board of the ecb is being established, the president, the vice-president and the other members of the executive board shall be appointed by common accord of the governments of the member states at the level of heads of state or of government, on a recommendation from the council and after consulting the european parliament and the council of the emi. the president of the executive board shall be appointed for years. by way of derogation from article . , the vice-president shall be appointed for years and the other members of the executive board for terms of office of between and years. no term of office shall be renewable. the number of members of the executive board may be smaller than provided for in article . , but in no circumstance shall it be less than four. article derogation from article . . if, after the start of the third stage, the governing council decides that the application of article results in significant changes in national central banks' relative income positions, the amount of income to allocated pursuant to article shall be reduced by a uniform percentage which shall not exceed % in the first financial year after the start of the third stage and which shall decrease by at least percentage points in each subsequent financial year. . . article . . shall be applicable for not more than five financial years after the start of the third stage. article exchange of bank notes in community currencies. following the irrevocable fixing of exchange rates, the governing council shall take the necessary measures to ensure that bank notes denominated in currencies with irrevocably fixed exchange rates are exchanged by the national central banks at their respective par values. article applicability of the transitional provisions if and as long as there are member states with a derogation articles to shall be applicable. protocol on the statute of the european monetary institute the high contracting parties, desiring to lay down the statute of the european monetary institute, have agreed upon the following provisions, which shall be annexed to the treaty establishing the european community: article constitution and name . . the european monetary institute (emi) shall be established in accordance with article f of this treaty; it shall perform its functions and carry out its activities in accordance with the provisions of this treaty and of this statute. . . the members of the emi shall be the central banks of the member states ("national central banks"). for the purposes of the statute, the institut monetaire luxembourgeois shall be regarded as the central bank of luxembourg. . . pursuant to article f of this treaty, both the committee of governors and the european monetary co-operation fund (emcf) shall be dissolved. all assets and liabilities of the emcf shall pass automatically to the emi. article objectives the emi shall contribute to the realization of the conditions necessary for the transition to the third stage of economic and monetary union, in particular by: - strengthening the co-ordination of monetary policies with a view to ensuring price stability; - making the preparations required for the establishment of the european system of central banks (escb), and for the conduct of a single monetary policy and the creation of a single currency in the third stage; - overseeing the development of the ecu. article general principles . . the emi shall carry out the tasks and functions conferred upon it by this treaty and this statute without prejudice to the responsibility of the competent authorities for the conduct of the monetary policy within the respective member states. . . the emi shall act in accordance with the objectives and principles stated in article of the statute of the escb. article primary tasks . . in accordance with article f( ) of this treaty, the emi shall: - strengthen co-operation between the national central banks; - strengthen the co-ordination of the monetary policies of the member states with the aim of ensuring price stability; - monitor the functioning of the european monetary system (ems); - hold consultations concerning issues falling within the competence of the national central banks and affecting the stability of financial institutions and markets; - take over the tasks of the emcf; in particular it shall perform the functions referred to in articles . , . and . ; - facilitate the use of the ecu and oversee its development, including the smooth functioning of the ecu clearing system. the emi shall also: - hold regular consultations concerning the course of monetary policies and the use of monetary policy instruments; - normally be consulted by the national monetary authorities before they take decisions on the course of monetary policy in the context of the common framework for ex ante co-ordination. . . at the latest by december , the emi shall specify the regulatory, organizational and logistical framework necessary for the escb to perform its tasks in the third stage, in accordance with the principle of an open market economy with free competition. this framework shall be submitted by the council of the emi for decision to the ecb at the date of its establishment. in accordance with article f( ) of this treaty, the emi shall in particular: - prepare the instruments and the procedures necessary for carrying out a single monetary policy in the third stage; - promote the harmonization, where necessary, of the rules and practices governing the collection, compilation and distribution of statistics in the areas within its field of competence; - prepare the rules for operations to be undertaken by the national central banks in the framework of the escb; - promote the efficiency of cross-border payments; - supervise the technical preparation of ecu bank notes. article advisory functions. . . in accordance with article f( ) of this treaty, the council of the emi may formulate opinions or recommendations on the overall orientation of monetary policy and exchange rate policy as well as on related measures introduced in each member state. the emi may submit opinions or recommendations to governments and to the council on policies which might affect the internal or external monetary situation in the community and, in particular, the functioning of the ems. . . the council of the emi may also make recommendations to the monetary authorities of the member states concerning the conduct of their monetary policy. . . in accordance with article f( ) of this treaty, the emi shall be consulted by the council regarding any proposed community act within its field of competence. within the limits and under the conditions set out by the council acting by a qualified majority on a proposal from the commission and after consulting the european parliament and the emi shall be consulted by the authorities of the member states on any draft legislative provision within its field of competence, in particular with regard to article . . . . in accordance with article f( ) of this treaty, the emi may decide to publish its opinions and its recommendations. article operational and technical functions . . the emi shall; - provide for the multilateralization of positions resulting from interventions by the national central banks in community currencies and the multilateralization of intra-community settlements; - administer the very short-term financing mechanism provided for by the agreement of march between the central banks of the member states of the european economic community laying down the operating procedures for the european monetary system (hereinafter referred to as "ems agreement") and the short-term monetary support mechanism provided for in the agreement between the central banks of the member states of the european economic community of february , as amended; - perform the functions referred to in article of council regulation (eec) no / of june establishing a single facility providing medium-term financial assistance for member states' balances of payments. . . the emi may receive monetary reserves from the national central banks and issue ecus against such assets for the purpose of implementing the ems agreement. these ecus may be used by the emi and the national central banks as a means of settlement and for transactions between them and the emi. the emi shall take the necessary administrative measures for the implementation of this paragraph. . . the emi may grant to the monetary authorities of third countries and to international monetary institutions the status of "other holders" of ecus and fix the terms and conditions under which such ecus may be acquired, held or used by other holders. . . the emi shall be entitled to hold and manage foreign exchange reserves as an agent for and at the request of national central banks. profits and losses regarding these reserves shall be for the account of the national central bank depositing the reserves. the emi shall perform this function on the basis of bilateral contracts in accordance with rules laid down in a decision of the emi. these rules shall ensure that transactions with these reserves shall not interfere with the monetary policy and exchange rate policy of the competent monetary authority of any member state and shall be consistent with the objectives of the emi and the proper functioning of the exchange rate mechanism of the ems. article other tasks . . once a year the emi shall address a report to the council on the state of the preparations for the third stage. these reports shall include an assessment of the progress towards convergence in the community, and cover in particular the adaptation of monetary policy instruments and the preparation of the procedures necessary for carrying out a single monetary policy in the third stage, as well as the statutory requirements to be fulfilled for national central banks to become an integral part of the escb. . . in accordance with the council decisions referred to in article f( ) of this treaty, the emi may perform other tasks for the preparation of the third stage. article independence the members of the council of the emi who are the representatives of their institutions shall, with respect to their activities, act according to their own responsibilities. in exercising the powers and performing the tasks and duties conferred upon them by this treaty and this statute, the council of the emi may not seek or take any instructions from community institutions or bodies or governments of member states.the community institutions and bodies as well as the governments of the member states undertake to respect this principle and not seek to influence the council of the emi in the performance of its tasks. article administration . . in accordance with article f( ) of this treaty, the emi shall be directed and managed by the council of the emi. . . the council of the emi shall consist of a president and the governors of the national central banks, on of whom shall be vice- president. if a governor is prevented from attending a meeting, he may nominate another representative of his institution. . . the president shall be appointed by common accord of the governments of the member states at the level of heads of state or of government, on a recommendation from, as the case may be, the committee of governors or the council of the emi, and after consulting the european parliament and the council. the president shall be selected from among persons of recognized standing and professional experience in monetary or banking matters. only nationals of member states may be president of the emi. the council of the emi shall appoint the vice-president. the president and vice- president shall be appointed for a period of three years. . . the president shall perform his duties on a full-time basis. he shall not engage in any occupation, whether gainful or not, unless exemption is exceptionally granted by the council of the emi. . . the president shall - prepare and chair meetings of the council of the emi; - without prejudice to article , present the views of the emi externally; - be responsible for the day-to-day management of the emi. in the absence of the president, his duties shall be performed by the vice-president. . . the terms and conditions of employment of the president, in particular his salary, pension and other social security benefits, shall be the subject of a contract with the emi and shall be fixed by the council of the emi on a proposal from a committee comprising three members appointed by the committee of governors or the council of the emi, as the case may be, and three members appointed by the council. the president shall not have the right to vote on matters referred to in this paragraph. . . if the president no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the court of justice may, on application by the council of the emi, compulsorily retire him. . . the rules of procedure of the emi shall be adopted by the council of the emi. article meetings of the council of the emi and voting procedures . the council of the emi shall meet at least ten times a year. the proceedings of council meetings shall be confidential. the council of the emi may, acting unanimously, decide to make the outcome of its deliberations public. . . each member of the council of the emi or his nominee shall have one vote. . . save as otherwise provided for in this statute, the council of the emi shall act by a simple majority of its members. . . decisions to be taken in the context of articles . , . , . , and . shall require unanimity of the members of the council of the emi. the adoption of opinions and recommendations under articles . and . , the adoption of decisions under articles . , and . and the adoption of guidelines under article . shall require a qualified majority of two thirds of the members of the council of the emi. article interinstitutional co-operation and reporting requirements . the president of the council and a member of the commission may participate, without having the right to vote, in meetings of the council of the emi. . . the president of the emi shall be invited to participate in council meetings when the council is discussing matters relating to the objectives and tasks of the emi. . . at a date to be established in the rules of procedure, the emi shall prepare an annual report on its activities and on monetary and financial conditions in the community. the annual report, together with the annual accounts of the emi, shall be addressed to the european parliament, the council and the commission and also to the european council. the president of the emi may, at the request of the european parliament or on his own initiative, be heard by the competent committees of the european parliament. . . reports published by the emi shall be made available to interested parties free of charge. article currency denomination the operations of the emi shall be expressed in ecus. article seat before the end of , the decision as to where the seat of the emi will be established shall be taken by common accord of the governments of the member states at the level of heads of state or of government. article legal capacity the emi, which in accordance with article f( ) of this treaty shall have legal personality, shall enjoy in each of the member states the most extensive legal capacity accorded to legal persons under their law; it may, in particular, acquire or dispose of movable or immovable property and may be a party to legal proceedings. article legal acts. . . in the performance of its tasks, and under the conditions laid down in this statute, the emi shall: - deliver opinions - make recommendations; - adopt guidelines, and take decisions, which shall be addressed to the national central banks. . . opinions and recommendations of the emi shall have no binding force . . the council of the emi may adopt guidelines laying down the methods for the implementation of the conditions necessary for the escb to perform its functions in the third stage. emi guidelines shall have no binding force; they shall be submitted for decision to the ecb. . . without prejudice to article . , a decision of the emi shall be binding in its entirety upon those to whom it is addressed. articles and of this treaty shall apply to these decisions. article financial resources. . . the emi shall be endowed with its own resources. the size of the resources of the emi shall be determined by the council of the emi with a view to ensuring the income deemed necessary to cover the administrative expenditure incurred in the performance of the tasks and functions of the emi. . . the resources of the emi determined in accordance with article . shall be provided out of contributions by the national central banks in accordance with the key referred to in article . of the statute of the escb and be paid up at the establishment of the emi. for this purpose, the statistical data to be used for the determination of the key shall be provided by the commission, in accordance with the rules adopted by the council, acting by a qualified majority on a proposal from the commission and after consulting the european parliament, the committee of governors and the committee referred to in article c of this treaty. . . the council of the emi shall determine the form in which contributions shall be paid up. article annual accounts and auditing . . the financial year of the emi shall begin on the first day of january and end on the last day of december. . . the council of the emi shall adopt an annual budget before the beginning of each financial year. . . the annual accounts shall be drawn up in accordance with the principles established by the council of the emi. the annual accounts shall be approved by the council of the emi and shall thereafter be published. . . the annual accounts shall be audited by independent external auditors approved by the council of the emi. the auditors shall have full power to examine all books and accounts of the emi and to obtain full information about its transactions. the provisions of article c of this treaty shall only apply to an examination of the operational efficiency of the management of the emi. . . any surplus of the emi shall be transferred in the following order (a) an amount to be determined by the council of the emi shall be transferred to the general reserve fund of the emi. (b) any remaining surplus shall be distributed to the national central banks in accordance with the key referred to in article . . . . in the event of a loss incurred by the emi, the shortfall shall be offset against the general reserve fund of the emi. any remaining shortfall shall be made good by contributions from the national central banks, in accordance with the key as referred to in article . . article staff . . the council of the emi shall lay down the conditions of employment of the staff of the emi. . . the court of justice shall have jurisdiction in any dispute between the emi and its servants within the limits and under the conditions laid down in the conditions of employment. article judicial control and related matters. . . the acts or omissions of the emi shall be open to review or interpretation by the court of justice in the cases and under the conditions laid down in this treaty. the emi may institute proceedings in the cases and under the conditions laid down in this treaty. . . disputes between the emi, on the one hand, and its creditors, debtors or any other person, on the other, shall fall within the jurisdiction of the competent national courts, save where jurisdiction has been conferred upon the court of justice. . . the emi shall be subject to the liability regime provided for in article of this treaty. . . the court of justice shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the emi, whether that contract be governed by public or private law. . . a decision of the emi to bring an action before the court of justice shall be taken by the council of the emi. article professional secrecy . . members of the council of the emi and the staff of the emi shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy. . . persons having access to data covered by community legislation imposing and obligation of secrecy shall be subject to such legislation. article privileges and immunities the emi shall enjoy in the territories of the member states such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the protocol on the privileges and immunities of the european communities annexed to the treaty establishing a single council and a single commission of the european communities. article signatories the emi shall be legally committed to third parties by the president or the vice-president or by the signatures of two members of the staff of the emi who have been duly authorized by the president to sign on behalf of the emi. article liquidation of the emi . . in accordance with article l of this treaty, the emi shall go into liquidation on the establishment of the ecb. all assets and liabilities of the emi shall then pass automatically to the ecb. the latter shall liquidate the emi according to the provisions of this article. the liquidation shall be completed by the beginning of the third stage. . . the mechanism for the creation of ecus against gold and us dollars as provided for by article of the ems agreement shall be unwound by the first day of the third stage in accordance with article of the said agreement. . . all claims and liabilities arising from the very short-term financing mechanism and the short-term monetary support mechanism, under the agreements referred to in article . , shall be settled by the first day of the third stage. . . all remaining assets of the emi shall be disposed of and all remaining liabilities of the emi shall be settled. . . the proceeds of the liquidation described in article . . shall be distributed to the national central banks in accordance with the key referred to in article . . . the council of the emi may take the measures necessary for the application of articles . . and . . . . upon the establishment of the ecb, the president of the emi shall relinquish his office. protocol on the excessive deficit procedure the high contracting parties desiring to lay down the details of the excessive deficit procedure referred to in article c of the treaty establishing the european community, have agreed upon the following provisions, which shall be annexed to the treaty establishing the european community: article the reference values referred to in article c( ) of this treaty are: - % for the ratio of the planned or actual government deficit to gross domestic product at market prices; - % for the ratio of government debt to gross domestic product at market prices. article in article c of this treaty and in this protocol: - government means general government, that is central government, regional or local government and social security funds, to the exclusion of commercial operations, as defined in the european system of integrated economic accounts; - deficit means net borrowing as defined in the european system of integrated economic accounts; - investment means gross fixed capital formation as defined in the european system of integrated economic accounts; - debt means total gross debt at nominal value outstanding at the end of the year and consolidated between and within the sectors of general government as defined in the first indent. article in order to ensure the effectiveness of the excessive deficit procedure, the governments of the member states shall be responsible under this procedure for the deficits of general government as defined in the first indent of article . the member states shall ensure that national procedures in the budgetary area enable them to meet their obligations in this area deriving from this treaty. the member states shall report their planned and actual deficits and the levels of their debt promptly and regularly to the commission. article . the statistical data to be used for the application of this protocol shall be provided by the commission. protocol on the convergence criteria referred to in article j of the treaty establishing the european community the high contracting parties, desiring to lay down the details of the convergence criteria which shall guide the community in taking decisions on the passage to the third stage of economic and monetary union, referred to in article j( ) of this treaty, have agreed upon the following provisions, which shall be annexed to the treaty establishing the european community: article the criterion on price stability referred to in the first indent of article j( ) of this treaty shall mean that a member state has a price performance that is sustainable and an average rate of inflation, observed over a period of one year before the examination, that does not exceed by more than / percentage points that of, at most, the three best performing member states in terms of price stability. inflation shall be measured by means of the consumer price index on a comparable basis, taking into account differences in national definitions. article the criterion on the government budgetary position referred to in the second indent of article j( ) of this treaty shall mean that at the time of the examination the member state is not the subject of a council decision under article c( ) of this treaty that an excessive deficit exists. article the criterion on participation in the exchange rate mechanism of the european monetary system referred to in the third indent of article j( ) of this treaty shall mean that a member state has respected the normal fluctuation margins provided for by the exchange rate mechanism of the european monetary system without severe tensions for at least the last two years before the examination. in particular, the member state shall not have devalued its currency's bilateral central rate against any other member state's currency on its own initiative for the same period. article the criterion on the convergence of interest rates referred to in the fourth indent of article j( ) of this treaty shall mean that, observed over a period of one year before the examination, a member state has had an average nominal long-term interest rate that does not exceed by more than percentage points that of, at most, the three best performing member states in terms of price stability. interest rates shall be measured on the basis of long term government bonds or comparable securities, taking into account differences in national definitions. article the statistical data to be used for the application of this protocol shall be provided by the commission. article the council shall, acting unanimously on a proposal from the commission and after consulting the european parliament, the emi or the ecb as the case may be, and the committee referred to in article c, adopt appropriate provisions to lay down the details of the convergence criteria referred to article j of this treaty, which shall then replace this protocol. protocol amending the protocol on the privileges and immunities of the european communities the high contracting parties, considering that, in accordance with article of the statute of the european central bank and article of the statute of the european monetary institute, the european central bank and the european monetary institute shall enjoy in the territories of the member states such privileges and immunities as are necessary for the performance of their tasks, have agreed upon the following provisions, which shall be annexed to the treaty establishing the european community: sole article the protocol on the privileges and immunities of the european communities, annexed to the treaty establishing a single council and a single commission of the european communities, shall be supplemented by the following provisions: "article this protocol shall also apply to the european central bank, to the members of its organs and to its staff, without prejudice to the provisions of the protocol on the statute of the european system of central banks and the european central bank. the european central bank shall, in addition, be exempt from any form of taxation or imposition of a like nature on the occasion of any increase in its capital and from the various formalities which may be connected therewith in the state where the bank has its seat. the activities of the bank and of its organs carried on in accordance with the statute of the european system of central banks and of the european central bank shall not be subject to any turnover tax. the above provisions shall also apply to the european monetary institute. its dissolution or liquidation shall not give rise to any imposition." protocol on denmark the high contracting parties, desiring to settle certain particular problems relating to denmark, have agreed upon the following provisions, which shall be annexed to the treaty establishing the european community: the provisions of article of the protocol on the statute of the european system of central banks and of the european system of central banks and of the european central bank shall not affect the right of the national bank of denmark to carry out its existing tasks concerning those parts of the kingdom of denmark which are not part of the community. protocol on portugal the high contracting parties, desiring to settle certain particular problems relating to portugal, have agreed upon the following provisions, which shall be annexed to the treaty establishing the european community: . portugal is hereby authorized to maintain the facility afforded to the autonomous regions of azores and madeira to benefit from an interest-free credit facility with the banco de portugal under the terms established by existing portuguese law. . portugal commits itself to pursue its best endeavors in order to put an end to the above mentioned facility as soon as possible. protocol on the transition to the third stage of economic and monetary union the high contracting parties, declare the irreversible character of the community's movement to the third stage of economic and monetary union by signing the new treaty provisions on economic and monetary union. therefore all member states shall, whether they fulfil the necessary conditions for the adoption of a single currency or not, respect the will for the community to enter swiftly into the third stage, and therefore no member state shall prevent the entering into the third stage. if by the end of the date of the beginning of the third stage has not been set, the member states concerned, the community institutions and other bodies involved shall expedite all preparatory work during , in order to enable the community to enter the third stage irrevocably on january and to enable the ecb and escb to start their full functioning from this date. this protocol shall be annexed to the treaty establishing the european community. protocol on certain provisions relating to the united kingdom of great britain and northern ireland the high contracting parties, recognizing that the united kingdom shall not be obliged or committed to move to the third stage of economic and monetary union without a separate decision to do so by its government and parliament, noting the practice of the government of the united kingdom to fund its borrowing requirement by the sale of debt to the private sector. have agreed the following provisions, which shall be annexed to the treaty establishing the european community: . the united kingdom shall notify the council whether it intends to move to the third stage before the council makes its assessment under article j( ) of this treaty; unless the united kingdom notifies the council that it intends to move to the third stage, it shall be under no obligation to do so. if no date is set for the beginning of the third stage under article j( ) of this treaty, the united kingdom may notify its intention to move to the third stage before january . . paragraphs to shall have effect if the united kingdom notifies the council that it does not intend to move to the third stage. .the united kingdom shall not be included among the majority of member states which fulfil the necessary conditions referred to in the second indent of article j( ) and the first indent of article j( ) of this treaty. . the united kingdom shall retain its powers in the field of monetary policy according to national law. . articles a( ), c( ), ( ) and ( ), ( ) to ( ), a, , , a, , a( ) and ( )(b) and l( ) and ( ) of this treaty shall not apply to the united kingdom. in these provisions references to the community or the member states shall not include the united kingdom and references to national central banks shall not include the bank of england. . articles e( ) and h and i of this treaty shall continue to apply to the united kingdom. articles c( ) and m shall apply to the united kingdom as if it had a derogation. . the voting rights of the united kingdom shall be suspended in respect of acts of the council referred to in articles listed in paragraph . for this purpose the weighted votes of the united kingdom shall be excluded form any calculation of a qualified majority under article k( ) of this treaty. the united kingdom shall also have no right to participate in the appointment of the president, the vice-president and the other members of the executive board of the ecb under articles a( )(b) and l( ) of this treaty. . articles , , , , . , . , . , . , . , , , to , , , , , to , and of the protocol on the statute of the european system of central banks and of the european central bank ("the statute") shall not apply to the united kingdom. in those articles, references to the community or the member states shall not include the united kingdom and references to national central banks or shareholders shall not include the bank of england. references in articles . and . . of the statute to "subscribed capital of the ecb" shall not include capital subscribed by the bank of england. . article ( ) of this treaty and articles to of the statute shall have effect, whether or not there is any member state with a derogation, subject to the following amendments: (a) references in article ot the tasks of the ecb and the emi shall include those tasks that still need to be performed in the third stage owing to any decision of the united kingdom not to move to that stage. (b) in addition to the tasks referred to in article the ecb shall also give advice in relation to and contribute to the preparation of any decision of the council with regard to the united kingdom taken in accordance with paragraphs (a) and (c). (c) the bank of england shall pay up its subscription to the capital of the ecb as a contribution of its operational costs on the same basis as national central banks of member states with a derogation. . if the united kingdom does not move to the third stage, it may change its notification at any time after the beginning of that stage. in that event: (a) the united kingdom shall have the right to move to the third stage provided only that it satisfies the necessary conditions. the council, acting at the request of the united kingdom and under the conditions and in accordance with the procedure laid down in article k( ) of this treaty, shall decide whether it fulfills the necessary conditions. (b) the bank of england shall pay up its subscribed capital, transfer to the ecb foreign reserve assets and contribute to its reserves on the same basis as the national central bank of a member state whose derogation has been abrogated. (c) the council, acting under the conditions and in accordance with the procedure laid down in article ( ) of this treaty, shall take all other necessary decisions to enable the united kingdom to move to the third stage. if the united kingdom moves to the third stage pursuant to the provisions of this protocol, paragraphs to shall cease to have effect. . notwithstanding articles and e( ) of this treaty and article . . of the statute, the government of the united kingdom may maintain its ways and means facility with the bank of england if and so long as the united kingdom does not move to the third stage. protocol on certain provisions relating to denmark the high contracting parties, desiring to settle, in accordance with the general objectives of the treaty establishing the european community, certain particular problems existing at the present time, taking into account that the danish constitution contains provisions which may imply a referendum in denmark prior to danish participation in the third stage of economic and monetary union, have agreed on the following provisions, which shall be annexed to the treaty establishing the european community: . the danish government shall notify the council of its position concerning participation in the third stage before the council makes its assessment under article j( ) of this treaty. . in the event of a notification that denmark will not participate in the third stage, denmark shall have an exemption. the effect of the exemption shall be that all articles and provisions of this treaty and the statute of the escb referring to a derogation shall be applicable to denmark. . in such case, denmark shall not be included among the majority of member states which fulfil the necessary conditions referred to in the second indent of article j( ) and the first indent of article j( ) of this treaty. . as for the abrogation of the exemption, the procedure referred to in article k( ) shall only be initiated at the request of denmark. . in the event of abrogation of the exemption status, the provisions of this protocol shall cease to apply. protocol on france the high contracting parties, desiring to take into account a particular point relating to france, have agreed upon the following provisions, which shall be annexed to the treaty establishing the european community. france will keep the privilege of monetary emission in its overseas territories under the terms established by its national laws, and will be solely entitled to determine the parity of the cfp franc. protocol on social policy the high contracting parties, noting that eleven member states, that is to say the kingdom of belgium, the kingdom of denmark and federal republic of germany, the hellenic republic, the kingdom of spain, the french republic, ireland, the italian republic, the grand duchy of luxembourg, the kingdom of the netherlands and the portuguese republic, wish to continue along the path laid down in the social charter; that they have adopted among themselves an agreement to this end; that this agreement is annexed to this protocol; that this protocol and the said agreement are without prejudice to the provisions of this treaty, particularly those relating to social policy which constitute an integral part of the "acquis communautaire": . agree to authorize those eleven member states to have recourse to the institutions, procedures and mechanisms of the treaty for the purposes of taking among themselves and applying as far as they are concerned the acts and decisions required for giving effect to the abovementioned agreement. . the united kingdom of great britain and northern ireland shall not take part in the deliberations and the adoption by the council of commission proposals made on the basis of the protocol and the above mentioned agreement. by way of derogation from article ( ) of the treaty, acts of the council which are made pursuant to this protocol and which must be adopted by a qualified majority shall be deemed to be so adopted if they have received at least forty-four votes in favour. the unanimity of the members of the council, with the exception of the united kingdom of great britain and northern ireland, shall be necessary for acts of the council which must be adopted unanimously and for those amending the commission proposal. acts adopted by the council and any financial consequences other than administrative costs entailed for the institutions shall not be applicable to the united kingdom of great britain and northern ireland. . this protocol shall be annexed to the treaty establishing the european community. agreement on social policy concluded between the member states of the european community with the exception of the united kingdom of great britain and northern ireland. the undersigned eleven high contracting parties, that is to say, the kingdom of belgium, the kingdom of denmark, the federal republic of germany, the hellenic republic, the grand duchy of luxembourg, the kingdom of the netherlands and the portuguese republic (hereinafter referred to the "the member states"), wishing to implement to the social charter on the basis of the "acquis communautaire", considering the protocol on social policy, have agreed as follows: article the community and the member states shall have as their objectives the promotion of employment, improved living and working conditions, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion. to this end the community and member states shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the community economy. article . with a view to achieving the objectives of article , the community shall support and complement the activities of the member states in the following fields: - improvement in particular of the working environment to protect workers' health and safety; - working conditions; - the information and consultation of workers; - equality between men and women with regard to labour market opportunities and treatment at work; - the integration of persons excluded from the labour market, without prejudice to article of the treaty establishing the european community (hereinafter referred to as "the treaty"). . to this end, the council may adopt, by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the member states. such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings. the council shall act in accordance with the procedure referred to in article c of the treaty after consulting the economic and social committee. . however, the council shall act unanimously on a proposal from the commission, after consulting the european parliament and the economic and social committee, in following areas: - social security and social protection of workers; - protection of workers where their employment contract is terminated; - representation and collective defence of the interests of worker and employers, including co-determination, subject to paragraph ; - conditions of employment for third-country nationals legally residing in community territory; - financial contributions for promotion of employment and job-creation, without prejudice to the provisions relating to the social fund. . a member state may entrust management and labour, at their joint request, with the implementation of directives adopted pursuant to paragraphs and . in this case, it shall ensure that, no later than the date on which a directive must be transposed in accordance with article , management and labour have introduced the necessary measures by agreement, the member state concerned being required to take any necessary measure enabling it at any time to be in a position to guarantee the results imposed by that directive. . the provisions adopted pursuant to this article shall not prevent any member state from maintaining or introducing more stringent protective measures compatible with the treaty. . the provisions of this article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs. article . the commission shall have the task of promoting the consultation of management and labour at community level and shall take any relevant measure to facilitate their dialogue by ensuring balanced support for the parties. . to this end, before submitting proposals in the social policy field, the commission shall consult management and labour on the possible direction of community action. . if, after such consultation, the commission considers community action advisable, it shall consult management and labour on the content of the envisaged proposal. management and labour shall forward to the commission an opinion or, where appropriate, a recommendation. . on the occasion of such consultation, management and labour may inform the commission of their wish to initiate the process provided for in article . the duration of the procedure shall not exceed nine months, unless the management and labour concerned and the commission decide jointly to extend it. article . should management and labour so desire, the dialogue between them at community level may lead to contractual relations, including agreements. . agreements concluded at community level shall be implemented either in accordance with the procedures and practices specific to management and labour and the member states or, in matters covered by article , at the joint request of the signatory parties, by a council decision on a proposal from the commission. the council shall act by qualified majority, except where the agreement in question contains one or more provisions relating to one of the areas referred to in article ( ), in which case it shall act unanimously. article with a view to achieving the objectives of article and without prejudice to the other provisions of the treaty, the commission shall encourage co-operation between the member states and facilitate the co-ordination of their action in all social policy fields under this agreement. article . each member state shall ensure that the principle of equal pay for male and female workers for equal work is applied. . for the purpose of this article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement. (b) that pay for work at time rates shall be the same for the same job. . this article shall not prevent any member state from maintaining or adopting measures providing for specific advantages in order to make it easier for women to pursue a vocational activity or to prevent or compensate for disadvantages in their professional careers. article the commission shall draw up a report each year on progress in achieving the objective of article , including the demographic situation in the community. it shall forward the report to the european parliament, the council and the economic and social committee. the european parliament may invite the commission to draw up reports on particular problems concerning the social situation. declarations . declaration on article ( ) the eleven high contracting parties note that in the discussions on article ( ) of the agreement it was agreed that the community does not intend, in laying down minimum requirements for the protection of the safety and health of employees, to discriminate in a manner unjustified by the circumstances against employees in small and medium-sized undertakings. . declaration on article ( ) the eleven high contracting parties declare that the first of the arrangements for application of the agreements between management and labour at community level - referred to in article ( ) - will consist in developing, by collective bargaining according to the rules of each member state, the content of the agreements, and that consequently this arrangement implies no obligation on the member states to apply the agreements directly or to work out rules for their transposition, or any obligation to amend national legislation in force to facilitate their implementation. protocol on economic and social cohesion the high contracting parties, recalling that the union has set itself the objective of promoting economic and social progress, inter alia, through the strengthening of economic and social cohesion; recalling that article of the treaty establishing the european community includes the task of promoting economic and social cohesion and solidarity between member states and that the strengthening of economic and social cohesion figures among the activities of the community listed in article ; recalling that the provisions of part three, title xiv, on economic and social cohesion as a whole provide the legal basis for consolidating and further developing the community's action in the field of economic and social cohesion, including the creation of a new fund; recalling that the provisions of part three, title xii on trans- european networks and title xvi on environment envisage a cohesion fund to be set up before december ; stating their belief that progress towards economic and monetary union will contribute to the economic growth of all member states; noting that the community's structural funds are being doubled in real terms between and , implying large transfers, especially as a proportion of gdp of the less prosperous member states; noting that the european investment bank is lending large and increasing amounts for the benefit of the poorer regions; noting the desire for greater flexibility in the arrangements for allocation from the structural funds; noting the desire for modulation of the levels of community participation in programmes and projects in certain countries; noting the proposal to take greater account of the relative prosperity of member states in the system of own resources, reaffirm that the promotion of economic and social cohesion is vital to the full development and enduring success of the community, and underline the importance of the inclusion of economic and social cohesion in articles and of this treaty; reaffirm their conviction that the structural funds should continue to play a considerable part in the achievement of community objectives in the field of cohesion; reaffirm their conviction that the european investment bank should continue to devote the majority of its resources to the promotion of economic and social cohesion, and declare their willingness to review the capital needs of the european investment bank as soon as this is necessary for that purpose; reaffirm the need for a thorough evaluation of the operation and effectiveness of the structural funds in , and the need to review, on that occasion, the appropriate size of these funds in the light of the tasks of the community in the area of economic and social cohesion; agree that the cohesion fund to be set up before december will provide community financial contributions to projects in the fields of environment and trans-european networks in member states with a per capita gnp of less than % of the community average which have a programme leading to the fulfilment of the conditions of economic convergence as set out in article c; declare their intention of allowing a greater margin of flexibility in allocating financing from the structural funds to specific needs not covered under the present structural funds regulations; declare their willingness to modulate the levels of community participation in the context of programmes and projects of the structural funds, with a view to avoiding excessive increases in budgetary expenditure in the less prosperous member states; recognize the need to monitor regularly the progress made towards achieving economic and social cohesion and state their willingness to study all necessary measures in this respect; declare their intention of taking greater account of the contributive capacity of individual member states in the system of own resources, and of examining means of correcting, for the less prosperous member states, regressive elements existing in the present own resources system; agree to annex this protocol to the treaty establishing the european community. protocol on the economic and social committee and the committee of the regions the high contracting parties have agreed upon the following provision, which shall be annexed to this treaty establishing the european community: the economic and social committee and the committee of the regions shall have a common organizational structure. protocol annexed to the treaty on european union and to the treaties establishing the european communities the high contracting parties, have agreed upon the following provision, which shall be annexed to the treaty on european union and to the treaties establishing the european communities: nothing in the treaty on european union, or in the treaties establishing the european communities, or in the treaties or acts modifying or supplementing those treaties, shall affect the application in ireland of article . . of the constitution of ireland. final act . the conferences of the representatives of the governments of the member states convened in rome on december to adopt by common accord the amendments to be made to the treaty establishing the european economic community with a view to the achievement of political union and with a view to the final stages of economic and monetary union, and those convened in brussels on february with a view to amending the treaties establishing respectively the european coal and steel community and the european atomic energy community as a result of the amendments envisaged for the treaty establishing the european economic community have adopted the following texts: i the treaty on european union ii protocols . protocol on the acquisition of property in denmark . protocol concerning article of the treaty establishing the european community . protocol on the statute of the european system of central banks and of the european central bank . protocol on the statute of the european monetary institute . protocol on the excessive deficit procedure . protocol on the convergence criteria referred to in article j of the treaty establishing the european community . protocol amending the protocol on the privileges and immunities of the european communities . protocol on denmark . protocol on portugal . protocol on the transition to the third stage of economic and monetary union . protocol on certain provisions relating to the united kingdom of great britain and northern ireland . protocol on certain provisions relating to denmark. . protocol on france . protocol on social policy, to which is annexed an agreement concluded between the member states of the european community with the exception of the united kingdom of great britain and northern ireland, to which two declarations are attached . protocol on economic and social cohesion . protocol on the economic and social committee and the committee of the regions . protocol annexed to the treaty on european union and to the treaties establishing the european communities the conferences agreed that the protocols referred to in to above will be annexed to the treaty establishing the european community and that the protocol referred to in above will be annexed to the treaty of european union and to the treaties establishing the european communities. . at the time of signature of these texts, the conferences adopted the declarations listed below and annexed to this final act: iii declarations . declaration on civil protection, energy and tourism . declaration on nationality of a member state . declaration on part three, titles iii and vi, of the treaty establishing the european community . declaration on part three, title vi, of the treaty establishing the european community . declaration on monetary co-operation with non-community countries . declaration on monetary relations with the republic of san marino, the vatican city and the principality of monaco . declaration on article d of the treaty establishing the european community . declaration on article of the treaty establishing the european economic community . declaration on part three, title xvi, of the treaty establishing the european community . declaration on articles , r and y of the treaty establishing the european community . declaration on the directive of november (emissions) . declaration of the european development fund . declaration on the role of national parliaments in the european union . declaration on the conference of the parliaments . declaration on the number of members of the commission and of the european parliament . declaration on the hierarchy of community acts . declaration on the right of access to information . declaration on estimated costs under commission proposals . declaration on the implementation of community law . declaration on assessment of the environmental impact of community measures . declaration on the court auditors . declaration of the economic and social committee . declaration on co-operation with charitable associations . declaration on the protection of animals . declaration on the representation of the interests of the overseas countries and territories referred to in article ( ) and ( )(a) and (b) of the treaty establishing the european community . declaration on the outermost regions of the community . declaration on voting in the field of the common foreign and security policy declaration on practical arrangements in the field of the common foreign and security policy. . declaration on the use of languages in the field of the common foreign and security policy . declaration on western european union . declaration on asylum . declaration on police co-operation . declaration on disputes between the ecb and the emi and their servants done at maastricht this seventh day of february in the year on thousand nine hundred and ninety-two declaration on civil protection, energy and tourism the conference declares that the question of introducing into the treaty establishing the european community titles relating to the spheres referred to in article (t) of that treaty will be examined, in accordance with the procedure laid down in article n( ) of the treaty on european union, on the basis of a report which the commission will submit to the council by at the latest. the commission declares that community action in those spheres will be pursued on the basis of the present provisions of the treaties establishing the european communities. declaration on nationality of a member state the conference declares that, wherever in the treaty establishing the european community reference is made to nationals of the member states, the question whether an individual possesses the nationality of a member state shall be settled solely by reference to the national law of the member state concerned. member states may declare, for information, who are to be considered their nationals for community purposes by way of declaration lodged with the presidency and may amend any such declarations when necessary. declaration on part three,titles iii and vi, of the treaty establishing the european community the conference affirms that, for the purposes of applying the provisions set out in part three, title iii, chapter on capital and payments, and title vi on economic and monetary policy, of this treaty, the usual practice, according to which the council meets in the composition of economic and finance ministers, shall be continued, without prejudice to article j( ) to ( ) and article k( ). declaration on part three, title vi, of the treaty establishing the european community the conference affirms that the president of the european council shall invite the economic and finance ministers to participate in european council meetings when the european council is discussing matters relating to economic and monetary union. declaration on monetary cooperation with non-community countries the conference affirms that the community shall aim to contribute to stable international monetary relations. to this end the community shall be prepared to co-operate with other european countries and with those non-european countries with which the community has close economic ties. declaration on monetary relations with the republic of san marino, the vatican city and the principality of monaco the conference agrees that the existing monetary relations between italy and san marino and the vatican city and between france and monaco remain unaffected by the treaty establishing the european community until the introduction of the ecu as the single currency of the community. the community undertakes to facilitate such renegotiations of existing arrangements as might become necessary as a result of the introduction of the ecu as a single currency. declaration on article d of the treaty establishing the european community the conference affirms that the right of member states to apply the relevant provisions of their tax law as referred to in article d( )(a) of this treaty will apply only with respect to the relevant provisions which exist at the end of . however, this declaration shall apply only to capital movements between member states and to payments effected between member states. declaration on article of the treaty establishing the european community the conference emphasizes that use of the term "formal agreements" in article ( ) is not intended to create a new category of international agreement within the meaning of community law. declaration on part three, title xvi, of the treaty establishing the european community the conference considers that, in view of the increasing importance of nature conservation at national, community and international level, the community should, in exercising its powers under the provisions of part three, title xvi, take account of the specific requirements of this area. declaration on articles , r and y of the treaty establishing the european community the conference considers that the provisions of article ( ), article r( ), second subparagraph, and article y do not affect the principles resulting from the judgment handed down by the court of justice in the aetr case. declaration on the directive of november (emissions) the conference declares that changes in community legislation cannot undermine the derogations granted to spain and portugal until december under the council directive of november on the limitation of emissions of certain pollutants into the air from large combustion plants. declaration on the european development fund the conference agrees that the european development fund will continue to be financed by national contributions in accordance with the current provisions. declaration on the role of national parliaments in the european union the conference considers that it is important to encourage greater involvement of national parliaments in the activities of the european union. to this end, the exchange of information between the national parliaments and the european parliament should be stepped up. in this context, the governments of the member states will ensure, inter alia, that national parliaments receive commission proposals for legislation in good time for information or possible examination. similarly, the conference considers that it is important for contacts between the national parliaments and the european parliament to be stepped up, in particular through the granting of appropriate reciprocal facilities and regular meetings between members of parliament interested in the same issues. declaration on the conference of the parliaments the conference invites the european parliament and the national parliaments to meet as necessary as a conference of the parliaments (or "assises") the conference of the parliaments will be consulted on the main features of the european union, without prejudice to the powers of the european parliament and the rights of the national parliaments. the president of the european council and the president of the commission will report to each session of the conference of the parliaments on the state of the union. declaration on the number of members of the commission and of the european parliament the conference agrees that the member states will examine the questions relating to the number of members of the commission and the number of members of the european parliament no later than at the end of , with a view to reaching an agreement which will permit the establishment of the necessary legal basis for fixing the number of members of the european parliament in good time for the elections. the decisions will be taken in the light, inter alia, of the need to establish the overall size of the european parliament in an enlarged community. declaration on the hierarchy of community acts the conference agrees that the intergovernmental conference to be convened in will examine to what extent it might be possible to review the classification of community acts with a view to establishing an appropriate hierarchy between the different categories of act. declaration on the right of access to information the conference considers that transparency of the decision-making process strengthens the democratic nature of the institutions and the public's confidence in the administration. the conference accordingly recommends that the commission submit to the council no later than a report on measures designed to improve public access to the information available to the institutions. declaration on estimated costs under commission proposals the conference notes that the commission undertakes, by basing itself where appropriate on any consultations it considers necessary and by strengthening its system for evaluating community legislation, to take account in its legislative proposals of costs and benefits to the member states' public authorities and all the parties concerned. declaration on the implementation of community law . the conference stresses that it is central to the coherence and unity of the process of european construction that each member state should fully and accurately transpose into national law the community directives addressed to it within the deadlines laid down therein. moreover, the conference, while recognizing that it must be for each member state to determine how the provisions of community law can best be enforced in the light of its own particular institutions, legal system and other circumstances, but in any event in compliance with article of the treaty establishing the european community, considers it essential for the proper functioning of the community that the measures taken by the different member states should result in community law being applied with the same effectiveness and rigour as in the application of their national law. . the conference calls on the commission to ensure, in exercising its powers under article of this treaty, that member states fulfill their obligations. it asks the commission to publish periodically a full report for the member states and the european parliament. declaration on assessment of the environmental impact of community measures the conference notes that the commission undertakes in its proposals, and that the member states undertake in implementing those proposals, to take full account of their environmental impact and of the principle of sustainable growth. declaration on the court of auditors the conference emphasizes the special importance it attaches to the task assigned to the court of auditors by articles a, b, c and of the treaty establishing the european community. it requests the other community institutions to consider, together with the court of auditors, all appropriate ways of enhancing the effectiveness of its work. declaration on the economic and social committee the conference agrees that the economic and social committee will enjoy the same independence with regard to its budget and staff management as the court auditors has enjoyed hitherto. declaration on cooperation with charitable associations the conference stresses the importance, in pursuing the objectives of article on the treaty establishing the european community, of co- operation between the latter and charitable associations and foundations as institutions responsible for social welfare establishments and services. declaration on the protection of animals the conference calls upon the european parliament, the council and the commission, as well as the member states, when drafting and implementing community legislation on the common agricultural policy, transport, the internal market and research, to pay full regard to the welfare requirements of animals. declaration on the representation of the interests of the overseas countries and territories referred to in article ( ) and ( )(a) and (b) of the treaty establishing the european community the conference, noting that in exceptional circumstances divergences may arise between the interests of the union and those of the overseas countries and territories referred to in article ( ) and ( )(a) and (b), agrees that the council will seek to reach a solution which accords with the position of the union. however, in the event that this proves impossible, the conference agrees that the member state concerned may act separately in the interests of the said overseas countries and territories, without this affecting the community's interests. the member state concerned will give notice to the council and the commission where such a divergence of interests is likely to occur and, when separate action proves unavoidable, make it clear that it is acting in the interests of overseas territory mentioned above. this declaration also applies to macao and east timor. declaration on the outermost regions of the community the conference acknowledges that the outermost regions of the community (the french overseas departments, azores and madeira and canary islands) suffer from major structural backwardness compounded by several phenomena (remoteness, island status, small size, difficult topography and climate, economic dependence on a few products), the permanence and combination of which severely restrain their economic and social development. it considers that, while the provisions of the treaty establishing the european community and secondary legislation apply automatically to outermost regions, it is nonetheless possible to adopt specific measures to assist them inasmuch and as long as there is an objective need to take such measures with a view to the economic and social development of those regions. such measures should have their aim both the completion of the internal market and a recognition of the regional reality to enable the outermost regions to achieve the average economic and social level of the community. declaration on voting in the field of the common foreign and security policy the conference agrees that, with regard to council decisions requiring unanimity, member states will, to the extent possible, avoid preventing a unanimous decision where a qualified majority exists in favour of that decision. declaration on practical arrangements in the field of the common foreign and security policy the conference agrees that the division of work between the political committee and the committee of permanent representatives will be examined at a later stage, as will the practical arrangements for merging the political co-operation secretariat with the general secretariat of the council and for co-operation between the latter and the commission. declaration on the use of languages in the field of the common foreign and security policy the conference agrees that the use of languages shall be in accordance with the rules of the european communities. for coreu communications, the current practice of european political co-operation will serve as a guide for the time being. all common foreign and security policy texts which are submitted to or adopted at meeting of the european council and of the council as well as all texts which are to be published are immediately and simultaneously translated into all the official community languages. declaration on western european union the conference notes the following declarations: i. declaration by belgium, germany, spain, france, italy, luxembourg, the netherlands, portugal and the united kingdom of great britain and northern ireland, which are members of the western european union and also members of the european union on the role of the western european union and its relations with the european union and with the atlantic alliance introduction . weu member states agree on the need to develop a genuine european security and defence identity and a greater european responsibility on defence matters. this identity will be pursued through a gradual process involving successive phases. weu will form an integral part of the process of the development of the european union and will enhance its contribution to solidarity within the atlantic alliance. weu member states agree to strengthen the role of weu, in the longer term perspective of a common defence, compatible with that of the atlantic alliance. . weu will be developed as the defence component of the european union and as a means to strengthen the european pillar of the atlantic alliance. to this end, it will formulate common european defence policy and carry forward its concrete implementation through the further development of its own operational role. weu member states take note of article j. relating to the common foreign and security policy of the treaty on european union which reads as follows: " . the common foreign and security policy shall include all questions related to the security of the union, including the eventual framing of a common defence policy, which might in time lead to a common defence. . the union requests the western union (weu), which is an integral part of the development of the union, to elaborate and implement decisions and actions of the union which have defence implications. the council shall, in agreement with the institutions of the weu, adopt the necessary practical arrangements. . issues having defence implications dealt with under this article shall not be subject to the procedures set out in article j. . . the policy of the union in accordance with this article shall not prejudice the specific character of the security and defence policy of certain member states and shall respect the obligations of certain member states under the north atlantic treaty and be compatible with the common security and defence policy established within that framework. . the provisions of this article shall not prevent the development of closer co-operation between two or more member states on a bilateral level, in the framework of the weu and the atlantic alliance, provided such co-operation does not run counter to or impede that provided for in this title. . with a view to furthering the objective of this treaty, and having in view the date of in the context of article xii of the brussels treaty, the provisions of this article may be revised as provided for in article n( ) on the basis of a report to be presented in by the council to the european council, which shall include an evaluation of the progress made and the experience gained until then." a. weu's relations with european union . the objective is to build up weu in stages as the defence component of the european union. to this end, weu is prepared, at the request of the european union, to elaborate and implement decisions and actions of the union which have defence implications. to this end, weu will take the following measures to develop a close working relationship with the union: - as appropriate, synchronization of the dates and venues of meetings and harmonization of working methods; - establishment of close co-operation between the council and secretariat-general of weu on the one hand, and the council of the union and general secretariat of the council on the other; - consideration of the harmonization of the sequence and duration of the respective presidencies; - arranging for appropriate modalities so as to ensure that the commission of the european communities is regularly informed and, as appropriate, consulted on weu activities in accordance with the role of the commission in the common foreign and security policy as defined in the treaty on european union; - encouragement of closer co-operation between the parliamentary assembly of weu and the european parliament. the weu council shall, in agreement with the competent bodies of the european union, adopt the necessary practical arrangements. b. weu's relations with the atlantic alliance . the objective is to develop weu as a means to strengthen the european pillar of the atlantic alliance. accordingly weu is prepared to develop further the close working links between weu and the alliance and to strengthen the role, responsibilities and contributions of weu member states in the alliance. this will be undertaken on the basis of the necessary transparency and complementarity between the emerging european security and defence identity and the alliance. weu will act in conformity with the positions adopted in the atlantic alliance. - weu member states will intensify their co-ordination on alliance issues which represent an important common interest with the aim of introducing joint positions agreed in weu into the process of consultation in the alliance which will remain the essential forum for consultation among its members and the venue for agreement on policies bearing on the security and defence commitments of allies under the north atlantic treaty. - where necessary, dates and venues of meetings will be synchronized and working methods harmonized. - close co-operation will be established between the secretariats- general of weu and nato. c. operational role of weu . weu's operational role will be strengthened by examining and defining appropriate missions, structures and means, covering in particular: -weu planning cell; - closer military co-operation complementary to the alliance in particular in the fields of logistics, transport, training and strategic surveillance; - meetings of weu chiefs of defence staff; - military units answerable to weu. other proposals will be examined further including: - enhanced co-operation in the field of armaments with the aim of creating a european armaments agency; -development of the weu institute into a european security and defence academy. arrangements aimed at giving weu a stronger operational role will be fully compatible with the military dispositions necessary to ensure the collective defence of all allies. d. other measures . as a consequence of the measures set out above, and in order to facilitate the strengthening of weu's role, the seat of the weu council and secretariat will be transferred to brussels. . representation of the weu council must be such that the council is able to exercise its functions continuously in accordance with article viii of the modified brussels treaty. member states may draw on a double-hatting formula, to be worked out, consisting of their representatives to the alliance and to the european union. . weu notes that, in accordance with the provisions of article j. ( ) concerning the common foreign and security policy of the treaty on european union, the union will decide to review the provisions of this article with a view to furthering the objective to be set by it in accordance with the procedure defined. the weu will re-examine the present provisions in . this re-examination will take account of the progress and experience acquired and will extend to relations between weu and the atlantic alliance. ii. declaration by belgium, germany, spain, france, italy, luxembourg, the netherlands, portugal and the united kingdom of great britain and northern ireland which are members of the western european union. "the member states of weu welcome the development of the european security and defence identity. they are determined, taking into account the role of weu as the defence component of the european union and as the means to strengthen the european pillar of the atlantic alliance, to put the relationship between weu and the other european states on a new basis for the sake of stability and security in europe. in this spirit, they propose the following: states which are members of the european union are invited to accede to weu on conditions to be agreed in accordance with article xi of the modified brussels treaty, or to become observers if they so wish. simultaneously, other european member states of nato are invited to become associate members of weu in a way which will give them the possibility of participating fully in the activities of weu. the member states of weu assume that treaties and agreements corresponding with the above proposals will be concluded before december ." declaration on asylum . the conference agrees that, in the context of the proceedings provided for in articles k. and k. of the provisions on co-operation in the fields of justice and home affairs, the council will consider as a matter of priority questions concerning member states' asylum policies, with the aim of adoption by the beginning of , common action to harmonize aspects of them, in the light of the work programme and timetable contained in the report on asylum drawn up at the request of the european council meeting in luxembourg on and june . . in this connection, the council will also consider, by the end of , on the basis of a report, the possibility of applying article k. to such matters. declaration on police co-operation the conference confirms the agreement of the member states on the objectives underlying the german delegations's proposals at the european council meeting in luxembourg on and june . for the present, the member states agree to examine as a matter of priority the drafts submitted to them, on the basis of the work programme and timetable agreed upon in the report drawn up at the request of the luxembourg european council, and they are willing to envisage the adoption of practical measures in areas such as those suggested by the german delegation, relating to the following functions in the exchange of information and experience: - support for national criminal investigation and security authorities, in particular in the co-ordination of investigations and search operations; - creation of data bases; - central analysis and assessment of information in order to take stock of the situation and identify investigative approaches; - collection and analysis of national prevention programmes for forwarding to member states and for drawing up europe-wide prevention strategies; - measures relating to further training, research, forensic matters and criminal records departments. member states agree to consider on the basis of a report, during at the latest, whether the scope of such co-operation should be extended. declaration on disputes between the ecb and the emi and their servants the conference considers it proper that the court of first instance should hear this class of action in accordance with article a of the treaty establishing the european community. the conference therefore invites the institutions to adapt the relevant rules accordingly. done at maastricht on the seventh day of february one thousand nine hundred and ninety two [ here follow the signatures ] may _ on may , in guimaraes (portugal), the high contracting parties to the treaty on european union adopted the following declaration: declaration of the high contracting parties to the treaty on european union the high contracting parties to the treaty on european union signed at maastricht on the seventh day of february , having considered the terms of protocol no to the said treaty on european union which is annexed to that treaty and to the treaties establishing the european communities, hereby give the following legal interpretation: that it was and is their intention that the protocol shall not limit freedom to travel between member states or, in accordance with conditions which may be laid down, in conformity with community law, by irish legislation, to obtain or make available in ireland information relating to services lawfully available in member states. at the same time the high contracting parties solemly declare that, in the event of a future constitutional amendment in ireland which concerns the subject matter of article . . . of the constitution of ireland and which does not conflict with the intention of the high contracting parties hereinbefore expressed, they will, following the entry into force of the treaty on european union, be favourably disposed to amending the said protocol so as to extend its application to such constitutional amendment if ireland so requests. the institutes of justinian translated into english by j. b. moyle, d.c.l. of lincoln's inn, barrister-at-law, fellow and late tutor of new college, oxford fifth edition ( ) prooemivm in the name of our lord, jesus christ. the emperor caesar flavius justinian, conqueror of the alamanni, the goths, the franks, the germans, the antes, the alani, the vandals, the africans, pious, prosperous, renowned, victorious, and triumphant, ever august, to the youth desirous of studying the law: the imperial majesty should be armed with laws as well as glorified with arms, that there may be good government in times both of war and of peace, and the ruler of rome may not only be victorious over his enemies, but may show himself as scrupulously regardful of justice as triumphant over his conquered foes. with deepest application and forethought, and by the blessing of god, we have attained both of these objects. the barbarian nations which we have subjugated know our valour, africa and other provinces without number being once more, after so long an interval, reduced beneath the sway of rome by victories granted by heaven, and themselves bearing witness to our dominion. all peoples too are ruled by laws which we have either enacted or arranged. having removed every inconsistency from the sacred constitutions, hitherto inharmonious and confused, we extended our care to the immense volumes of the older jurisprudence; and, like sailors crossing the mid-ocean, by the favour of heaven have now completed a work of which we once despaired. when this, with god's blessing, had been done, we called together that distinguished man tribonian, master and exquaestor of our sacred palace, and the illustrious theophilus and dorotheus, professors of law, of whose ability, legal knowledge, and trusty observance of our orders we have received many and genuine proofs, and especially commissioned them to compose by our authority and advice a book of institutes, whereby you may be enabled to learn your first lessons in law no longer from ancient fables, but to grasp them by the brilliant light of imperial learning, and that your ears and minds may receive nothing useless or incorrect, but only what holds good in actual fact. and thus whereas in past time even the foremost of you were unable to read the imperial constitutions until after four years, you, who have been so honoured and fortunate as to receive both the beginning and the end of your legal teaching from the mouth of the emperor, can now enter on the study of them without delay. after the completion therefore of the fifty books of the digest or pandects, in which all the earlier law has been collected by the aid of the said distinguished tribonian and other illustrious and most able men, we directed the division of these same institutes into four books, comprising the first elements of the whole science of law. in these the law previously obtaining has been briefly stated, as well as that which after becoming disused has been again brought to light by our imperial aid. compiled from all the institutes of our ancient jurists, and in particular from the commentaries of our gaius on both the institutes and the common cases, and from many other legal works, these institutes were submitted to us by the three learned men aforesaid, and after reading and examining them we have given them the fullest force of our constitutions. receive then these laws with your best powers and with the eagerness of study, and show yourselves so learned as to be encouraged to hope that when you have compassed the whole field of law you may have ability to govern such portion of the state as may be entrusted to you. given at constantinople the st day of november, in the third consulate of the emperor justinian, father of his country, ever august. book i. titles i. of justice and law ii. of the law of nature, the law of nations, and the civil law iii. of the law of persons iv. of men free born v. of freedmen vi. of persons unable to manumit, and the causes of their incapacity vii. of the repeal of the lex fufia caninia viii. of persons independent or dependent ix. of paternal power x. of marriage xi. of adoptions xii. of the modes in which paternal power is extinguished xiii. of guardianships xiv. who can be appointed guardians by will xv. of the statutory guardianship of agnates xvi. of loss of status xvii. of the statutory guardianship of patrons xviii. of the statutory guardianship of parents xix. of fiduciary guardianship xx. of atilian guardians, and those appointed under the lex iulia et titia xxi. of the authority of guardians xxii. of the modes in which guardianship is terminated xxiii. of curators xxiv. of the security to be given by guardians and curators xxv. of guardians' and curators' grounds of exemption xxvi. of guardians or curators who are suspected title i. of justice and law justice is the set and constant purpose which gives to every man his due. jurisprudence is the knowledge of things divine and human, the science of the just and the unjust. having laid down these general definitions, and our object being the exposition of the law of the roman people, we think that the most advantageous plan will be to commence with an easy and simple path, and then to proceed to details with a most careful and scrupulous exactness of interpretation. otherwise, if we begin by burdening the student's memory, as yet weak and untrained, with a multitude and variety of matters, one of two things will happen: either we shall cause him wholly to desert the study of law, or else we shall bring him at last, after great labour, and often, too, distrustful of his own powers (the commonest cause, among the young, of ill-success), to a point which he might have reached earlier, without such labour and confident in himself, had he been led along a smoother path. the precepts of the law are these: to live honestly, to injure no one, and to give every man his due. the study of law consists of two branches, law public, and law private. the former relates to the welfare of the roman state; the latter to the advantage of the individual citizen. of private law then we may say that it is of threefold origin, being collected from the precepts of nature, from those of the law of nations, or from those of the civil law of rome. title ii. of the law of nature, the law of nations, and the civil law the law of nature is that which she has taught all animals; a law not peculiar to the human race, but shared by all living creatures, whether denizens of the air, the dry land, or the sea. hence comes the union of male and female, which we call marriage; hence the procreation and rearing of children, for this is a law by the knowledge of which we see even the lower animals are distinguished. the civil law of rome, and the law of all nations, differ from each other thus. the laws of every people governed by statutes and customs are partly peculiar to itself, partly common to all mankind. those rules which a state enacts for its own members are peculiar to itself, and are called civil law: those rules prescribed by natural reason for all men are observed by all peoples alike, and are called the law of nations. thus the laws of the roman people are partly peculiar to itself, partly common to all nations; a distinction of which we shall take notice as occasion offers. civil law takes its name from the state wherein it binds; for instance, the civil law of athens, it being quite correct to speak thus of the enactments of solon or draco. so too we call the law of the roman people the civil law of the romans, or the law of the quirites; the law, that is to say, which they observe, the romans being called quirites after quirinus. whenever we speak, however, of civil law, without any qualification, we mean our own; exactly as, when 'the poet' is spoken of, without addition or qualification, the greeks understand the great homer, and we understand vergil. but the law of nations is common to the whole human race; for nations have settled certain things for themselves as occasion and the necessities of human life required. for instance, wars arose, and then followed captivity and slavery, which are contrary to the law of nature; for by the law of nature all men from the beginning were born free. the law of nations again is the source of almost all contracts; for instance, sale, hire, partnership, deposit, loan for consumption, and very many others. our law is partly written, partly unwritten, as among the greeks. the written law consists of statutes, plebiscites, senatusconsults, enactments of the emperors, edicts of the magistrates, and answers of those learned in the law. a statute is an enactment of the roman people, which it used to make on the motion of a senatorial magistrate, as for instance a consul. a plebiscite is an enactment of the commonalty, such as was made on the motion of one of their own magistrates, as a tribune. the commonalty differs from the people as a species from its genus; for 'the people' includes the whole aggregate of citizens, among them patricians and senators, while the term 'commonalty' embraces only such citizens as are not patricians or senators. after the passing, however, of the statute called the lex hortensia, plebiscites acquired for the first time the force of statutes. a senatusconsult is a command and ordinance of the senate, for when the roman people had been so increased that it was difficult to assemble it together for the purpose of enacting statutes, it seemed right that the senate should be consulted instead of the people. again, what the emperor determines has the force of a statute, the people having conferred on him all their authority and power by the 'lex regia,' which was passed concerning his office and authority. consequently, whatever the emperor settles by rescript, or decides in his judicial capacity, or ordains by edicts, is clearly a statute: and these are what are called constitutions. some of these of course are personal, and not to be followed as precedents, since this is not the emperor's will; for a favour bestowed on individual merit, or a penalty inflicted for individual wrongdoing, or relief given without a precedent, do not go beyond the particular person: though others are general, and bind all beyond a doubt. the edicts of the praetors too have no small legal authority, and these we are used to call the 'ius honorarium,' because those who occupy posts of honour in the state, in other words the magistrates, have given authority to this branch of law. the curule aediles also used to issue an edict relating to certain matters, which forms part of the ius honorarium. the answers of those learned in the law are the opinions and views of persons authorized to determine and expound the law; for it was of old provided that certain persons should publicly interpret the laws, who were called jurisconsults, and whom the emperor privileged to give formal answers. if they were unanimous the judge was forbidden by imperial constitution to depart from their opinion, so great was its authority. the unwritten law is that which usage has approved: for ancient customs, when approved by consent of those who follow them, are like statute. and this division of the civil law into two kinds seems not inappropriate, for it appears to have originated in the institutions of two states, namely athens and lacedaemon; it having been usual in the latter to commit to memory what was observed as law, while the athenians observed only what they had made permanent in written statutes. but the laws of nature, which are observed by all nations alike, are established, as it were, by divine providence, and remain ever fixed and immutable: but the municipal laws of each individual state are subject to frequent change, either by the tacit consent of the people, or by the subsequent enactment of another statute. the whole of the law which we observe relates either to persons, or to things, or to actions. and first let us speak of persons: for it is useless to know the law without knowing the persons for whose sake it was established. title iii. of the law of persons in the law of persons, then, the first division is into free men and slaves. freedom, from which men are called free, is a man's natural power of doing what he pleases, so far as he is not prevented by force or law: slavery is an institution of the law of nations, against nature subjecting one man to the dominion of another. the name 'slave' is derived from the practice of generals to order the preservation and sale of captives, instead of killing them; hence they are also called mancipia, because they are taken from the enemy by the strong hand. slaves are either born so, their mothers being slaves themselves; or they become so, and this either by the law of nations, that is to say by capture in war, or by the civil law, as when a free man, over twenty years of age, collusively allows himself to be sold in order that he may share the purchase money. the condition of all slaves is one and the same: in the conditions of free men there are many distinctions; to begin with, they are either free born, or made free. title iv. of men free born a freeborn man is one free from his birth, being the offspring of parents united in wedlock, whether both be free born or both made free, or one made free and the other free born. he is also free born if his mother be free even though his father be a slave, and so also is he whose paternity is uncertain, being the offspring of promiscuous intercourse, but whose mother is free. it is enough if the mother be free at the moment of birth, though a slave at that of conception: and conversely if she be free at the time of conception, and then becomes a slave before the birth of the child, the latter is held to be free born, on the ground that an unborn child ought not to be prejudiced by the mother's misfortune. hence arose the question of whether the child of a woman is born free, or a slave, who, while pregnant, is manumitted, and then becomes a slave again before delivery. marcellus thinks he is born free, for it is enough if the mother of an unborn infant is free at any moment between conception and delivery: and this view is right. the status of a man born free is not prejudiced by his being placed in the position of a slave and then being manumitted: for it has been decided that manumission cannot stand in the way of rights acquired by birth. title v. of freedmen those are freedmen, or made free, who have been manumitted from legal slavery. manumission is the giving of freedom; for while a man is in slavery he is subject to the power once known as 'manus'; and from that power he is set free by manumission. all this originated in the law of nations; for by natural law all men were born free--slavery, and by consequence manumission, being unknown. but afterwards slavery came in by the law of nations; and was followed by the boon of manumission; so that though we are all known by the common name of 'man,' three classes of men came into existence with the law of nations, namely men free born, slaves, and thirdly freedmen who had ceased to be slaves. manumission may take place in various ways; either in the holy church, according to the sacred constitutions, or by default in a fictitious vindication, or before friends, or by letter, or by testament or any other expression of a man's last will: and indeed there are many other modes in which freedom may be acquired, introduced by the constitutions of earlier emperors as well as by our own. it is usual for slaves to be manumitted by their masters at any time, even when the magistrate is merely passing by, as for instance while the praetor or proconsul or governor of a province is going to the baths or the theatre. of freedmen there were formerly three grades; for those who were manumitted sometimes obtained a higher freedom fully recognised by the laws, and became roman citizens; sometimes a lower form, becoming by the lex iunia norbana latins; and sometimes finally a liberty still more circumscribed, being placed by the lex aelia sentia on the footing of enemies surrendered at discretion. this last and lowest class, however, has long ceased to exist, and the title of latin also had become rare: and so in our goodness, which desires to raise and improve in every matter, we have amended this in two constitutions, and reintroduced the earlier usage; for in the earliest infancy of rome there was but one simple type of liberty, namely that possessed by the manumitter, the only distinction possible being that the latter was free born, while the manumitted slave became a freedman. we have abolished the class of 'dediticii,' or enemies surrendered at discretion, by our constitution, published among those our decisions, by which, at the suggestion of the eminent tribonian, our quaestor, we have set at rest the disputes of the older law. by another constitution, which shines brightly among the imperial enactments, and suggested by the same quaestor, we have altered the position of the 'latini iuniani,' and dispensed with all the rules relating to their condition; and have endowed with the citizenship of rome all freedmen alike, without regard to the age of the person manuumitted, and nature of the master's ownership, or the mode of manumission, in accordance with the earlier usage; with the addition of many new modes in which freedom coupled with the roman citizenship, the only kind of freedom now known may be bestowed on slaves. title vi. of persons unable to manumit, and the causes of their incapacity in some cases, however, manumission is not permitted; for an owner who would defraud his creditors by an intended manumission attempts in vain to manumit, the act being made of no effect by the lex aelia sentia. a master, however, who is insolvent may institute one of his slaves heir in his will, conferring freedom on him at the same time, so that he may become free and his sole and necessary heir, provided no one else takes as heir under the will, either because no one else was instituted at all, or because the person instituted for some reason or other does not take the inheritance. and this was a judicious provision of the lex aelia sentia, for it was most desirable that persons in embarrassed circumstances, who could get no other heir, should have a slave as necessary heir to satisfy their creditors' claims, or that at least (if he did not do this) the creditors might sell the estate in the slave's name, so as to save the memory of the deceased from disrepute. the law is the same if a slave be instituted heir without liberty being expressly given him, this being enacted by our constitution in all cases, and not merely where the master is insolvent; so that in accordance with the modern spirit of humanity, institution will be equivalent to a gift of liberty; for it is unlikely, in spite of the omission of the grant of freedom, that one should have wished the person whom one has chosen as one's heir to remain a slave, so that one should have no heir at all. if a person is insolvent at the time of a manumission, or becomes so by the manumission itself, this is manumission in fraud of creditors. it is, however, now settled law, that the gift of liberty is not avoided unless the intention of the manumitter was fraudulent, even though his property is in fact insufficient to meet his creditors' claims; for men often hope and believe that they are better off than they really are. consequently, we understand a gift of liberty to be avoided only when the creditors are defrauded both by the intention of the manumitter, and in fact: that is to say, by his property being insufficient to meet their claims. the same lex aelia sentia makes it unlawful for a master under twenty years of age to manumit, except in the mode of fictitious vindication, preceded by proof of some legitimate motive before the council. it is a legitimate motive of manumission if the slave to be manumitted be, for instance, the father or mother of the manumitter, or his son or daughter, or his natural brother or sister, or governor or nurse or teacher, or fosterson or fosterdaughter or fosterbrother, or a slave whom he wishes to make his agent, or a female slave whom he intends to marry; provided he marry her within six months, and provided that the slave intended as an agent is not less than seventeen years of age at the time of manumission. when a motive for manumission, whether true or false, has once been proved, the council cannot withdraw its sanction. thus the lex aelia sentia having prescribed a certain mode of manumission for owners under twenty, it followed that though a person fourteen years of age could make a will, and therein institute an heir and leave legacies, yet he could not confer liberty on a slave until he had completed his twentieth year. but it seemed an intolerable hardship that a man who had the power of disposing freely of all his property by will should not be allowed to give his freedom to a single slave: wherefore we allow him to deal in his last will as he pleases with his slaves as with the rest of his property, and even to give them their liberty if he will. but liberty being a boon beyond price, for which very reason the power of manumission was denied by the older law to owners under twenty years of age, we have as it were selected a middle course, and permitted persons under twenty years of age to manumit their slaves by will, but not until they have completed their seventeenth and entered on their eighteenth year. for when ancient custom allowed persons of this age to plead on behalf of others, why should not their judgement be deemed sound enough to enable them to use discretion in giving freedom to their own slaves? title vii. of the repeal of the lex fufia caninia moreover, by the lex fufia caninia a limit was placed on the number of slaves who could be manumitted by their master's testament: but this law we have thought fit to repeal, as an obstacle to freedom and to some extent invidious, for it was certainly inhuman to take away from a man on his deathbed the right of liberating the whole of his slaves, which he could have exercised at any moment during his lifetime, unless there were some other obstacle to the act of manumission. title viii. of persons independent or dependent another division of the law relating to persons classifies them as either independent or dependent. those again who are dependent are in the power either of parents or of masters. let us first then consider those who are dependent, for by learning who these are we shall at the same time learn who are independent. and first let us look at those who are in the power of masters. now slaves are in the power of masters, a power recognised by the law of all nations, for all nations present the spectacle of masters invested with power of life and death over slaves; and to whatever is acquired through a slave his owner is entitled. but in the present day no one under our sway is permitted to indulge in excessive harshness towards his slaves, without some reason recognised by law; for, by a constitution of the emperor antoninus pius, a man is made as liable to punishment for killing his own slave as for killing the slave of another person; and extreme severity on the part of masters is checked by another constitution whereby the same emperor, in answer to inquiries from presidents of provinces concerning slaves who take refuge at churches or statues of the emperor, commanded that on proof of intolerable cruelty a master should be compelled to sell his slaves on fair terms, so as to receive their value. and both of these are reasonable enactments, for the public interest requires that no one should make an evil use of his own property. the terms of the rescript of antoninus to aelius marcianus are as follow:--'the powers of masters over their slaves ought to continue undiminished, nor ought any man to be deprived of his lawful rights; but it is the master's own interest that relief justly sought against cruelty, insufficient sustenance, or intolerable wrong, should not be denied. i enjoin you then to look into the complaints of the slaves of iulius sabinus, who have fled for protection to the statue of the emperor, and if you find them treated with undue harshness or other ignominious wrong, order them to be sold, so that they may not again fall under the power of their master; and the latter will find that if he attempts to evade this my enactment, i shall visit his offence with severe punishment.' title ix. of paternal power our children whom we have begotten in lawful wedlock are in our power. wedlock or matrimony is the union of male and female, involving the habitual intercourse of daily life. the power which we have over our children is peculiar to roman citizens, and is found in no other nation. the offspring then of you and your wife is in your power, and so too is that of your son and his wife, that is to say, your grandson and granddaughter, and so on. but the offspring of your daughter is not in your power, but in that of its own father. title x. of marriage roman citizens are joined together in lawful wedlock when they are united according to law, the man having reached years of puberty, and the woman being of a marriageable age, whether they be independent or dependent: provided that, in the latter case, they must have the consent of the parents in whose power they respectively are, the necessity of which, and even of its being given before the marriage takes place, is recognised no less by natural reason than by law. hence the question has arisen, can the daughter or son of a lunatic lawfully contract marriage? and as the doubt still remained with regard to the son, we decided that, like the daughter, the son of a lunatic might marry even without the intervention of his father, according to the mode prescribed by our constitution. it is not every woman that can be taken to wife: for marriage with certain classes of persons is forbidden. thus, persons related as ascendant and descendant are incapable of lawfully intermarrying; for instance, father and daughter, grandfather and granddaughter, mother and son, grandmother and grandson, and so on ad infinitum; and the union of such persons is called criminal and incestuous. and so absolute is the rule, that persons related as ascendant and descendant merely by adoption are so utterly prohibited from intermarriage that dissolution of the adoption does not dissolve the prohibition: so that an adoptive daughter or granddaughter cannot be taken to wife even after emancipation. collateral relations also are subject to similar prohibitions, but not so stringent. brother and sister indeed are prohibited from intermarriage, whether they are both of the same father and mother, or have only one parent in common: but though an adoptive sister cannot, during the subsistence of the adoption, become a man's wife, yet if the adoption is dissolved by her emancipation, or if the man is emancipated, there is no impediment to their intermarriage. consequently, if a man wished to adopt his son-in-law, he ought first to emancipate his daughter: and if he wished to adopt his daughter-in-law, he ought first to emancipate his son. a man may not marry his brother's or his sister's daughter, or even his or her granddaughter, though she is in the fourth degree; for when we may not marry a person's daughter, we may not marry the granddaughter either. but there seems to be no obstacle to a man's marrying the daughter of a woman whom his father has adopted, for she is no relation of his by either natural or civil law. the children of two brothers or sisters, or of a brother and sister, may lawfully intermarry. again, a man may not marry his father's sister, even though the tie be merely adoptive, or his mother's sister: for they are considered to stand in the relation of ascendants. for the same reason too a man may not marry his great-aunt either paternal or maternal. certain marriages again are prohibited on the ground of affinity, or the tie between a man or his wife and the kin of the other respectively. for instance, a man may not marry his wife's daughter or his son's wife, for both are to him in the position of daughters. by wife's daughter or son's wife we must be understood to mean persons who have been thus related to us; for if a woman is still your daughterinlaw, that is, still married to your son, you cannot marry her for another reason, namely, because she cannot be the wife of two persons at once. so too if a woman is still your stepdaughter, that is, if her mother is still married to you, you cannot marry her for the same reason, namely, because a man cannot have two wives at the same time. again, it is forbidden for a man to marry his wife's mother or his father's wife, because to him they are in the position of a mother, though in this case too our statement applies only after the relationship has finally terminated; otherwise, if a woman is still your stepmother, that is, is married to your father, the common rule of law prevents her from marrying you, because a woman cannot have two husbands at the same time: and if she is still your wife's mother, that is, if her daughter is still married to you, you cannot marry her because you cannot have two wives at the same time. but a son of the husband by another wife, and a daughter of the wife by another husband, and vice versa, can lawfully intermarry, even though they have a brother or sister born of the second marriage. if a woman who has been divorced from you has a daughter by a second husband, she is not your stepdaughter, but iulian is of opinion that you ought not to marry her, on the ground that though your son's betrothed is not your daughterinlaw, nor your father's betrothed you stepmother, yet it is more decent and more in accordance with what is right to abstain from intermarrying with them. it is certain that the rules relating to the prohibited degrees of marriage apply to slaves: supposing, for instance, that a father and daughter, or a brother and sister, acquired freedom by manumission. there are also other persons who for various reasons are forbidden to intermarry, a list of whom we have permitted to be inserted in the books of the digest or pandects collected from the older law. alliances which infringe the rules here stated do not confer the status of husband and wife, nor is there in such case either wedlock or marriage or dowry. consequently children born of such a connexion are not in their father's power, but as regards the latter are in the position of children born of promiscuous intercourse, who, their paternity being uncertain, are deemed to have no father at all, and who are called bastards, either from the greek word denoting illicit intercourse, or because they are fatherless. consequently, on the dissolution of such a connexion there can be no claim for return of dowry. persons who contract prohibited marriages are subjected to penalties set forth in our sacred constitutions. sometimes it happens that children who are not born in their father's power are subsequently brought under it. such for instance is the case of a natural son made subject to his father's power by being inscribed a member of the curia; and so too is that of a child of a free woman with whom his father cohabited, though he could have lawfully married her, who is subjected to the power of his father by the subsequent execution of a dowry deed according to the terms of our constitution: and the same boon is in effect bestowed by that enactment on children subsequently born of the same marriage. title xi. of adoptions not only natural children are subject, as we said, to paternal power, but also adoptive children. adoption is of two forms, being effected either by rescript of the emperor, or by the judicial authority of a magistrate. the first is the mode in which we adopt independent persons, and this form of adoption is called adrogation: the second is the mode in which we adopt a person subject to the power of an ascendant, whether a descendant in the first degree, as a son or daughter, or in a remoter degree, as a grandson, granddaughter, great-grandson, or great-granddaughter. but by the law, as now settled by our constitution, when a child in power is given in adoption to a stranger by his natural father, the power of the latter is not extinguished; no right passes to the adoptive father, nor is the person adopted in his power, though we have given a right of succession in case of the adoptive father dying intestate. but if the person to whom the child is given in adoption by its natural father is not a stranger, but the child's own maternal grandfather, or, supposing the father to have been emancipated, its paternal grandfather, or its great-grandfather paternal or maternal, in this case, because the rights given by nature and those given by adoption are vested in one and the same person, the old power of the adoptive father is left unimpaired, the strength of the natural bond of blood being augmented by the civil one of adoption, so that the child is in the family and power of an adoptive father, between whom and himself there existed antecedently the relationship described. when a child under the age of puberty is adopted by rescript of the emperor, the adrogation is only permitted after cause shown, the goodness of the motive and the expediency of the step for the pupil being inquired into. the adrogation is also made under certain conditions; that is to say, the adrogator has to give security to a public agent or attorney of the people, that if the pupil should die within the age of puberty, he will return his property to the persons who would have succeeded him had no adoption taken place. the adoptive father again may not emancipate them unless upon inquiry they are found deserving of emancipation, or without restoring them their property. finally, if he disinherits him at death, or emancipates him in his lifetime without just cause, he is obliged to leave him a fourth of his own property, besides that which he brought him when adopted, or by subsequent acquisition. it is settled that a man cannot adopt another person older than himself, for adoption imitates nature, and it would be unnatural for a son to be older than his father. consequently a man who desires either to adopt or to adrogate a son ought to be older than the latter by the full term of puberty, or eighteen years. a man may adopt a person as grandson or granddaughter, or as great-grandson or great-granddaughter, and so on, without having a son at all himself; and similarly he may adopt another man's son as grandson, or another man's grandson as son. if he wishes to adopt some one as grandson, whether as the son of an adoptive son of his own, or of a natural son who is in his power, the consent of this son ought to be obtained, lest a family heir be thrust upon him against his will: but on the other hand, if a grandfather wishes to give a grandson by a son in adoption to some one else, the son's consent is not requisite. an adoptive child is in most respects in the same position, as regards the father, as a natural child born in lawful wedlock. consequently a man can give in adoption to another a person whom he has adopted by imperial rescript, or before the praetor or governor of a province, provided that in this latter case he was not a stranger (i.e. was a natural descendant) before he adopted him himself. both forms of adoption agree in this point, that persons incapable of procreation by natural impotence are permitted to adopt, whereas castrated persons are not allowed to do so. again, women cannot adopt, for even their natural children are not subject to their power; but by the imperial clemency they are enabled to adopt, to comfort them for the loss of children who have been taken from them. it is peculiar to adoption by imperial rescript, that children in the power of the person adrogated, as well as their father, fall under the power of the adrogator, assuming the position of grandchildren. thus augustus did not adopt tiberius until tiberius had adopted germanicus, in order that the latter might become his own grandson directly the second adoption was made. the old writers record a judicious opinion contained in the writings of cato, that the adoption of a slave by his master is equivalent to manumission. in accordance with this we have in our wisdom ruled by a constitution that a slave to whom his master gives the title of son by the solemn form of a record is thereby made free, although this is not sufficient to confer on him the rights of a son. title xii. of the modes in which paternal power is extinguished let us now examine the modes in which persons dependent on a superior become independent. how slaves are freed from the power of their masters can be gathered from what has already been said respecting their manumission. children under paternal power become independent at the parent's death, subject, however, to the following distinction. the death of a father always releases his sons and daughters from dependence; the death of a grandfather releases his grandchildren from dependence only provided that it does not subject them to the power of their father. thus, if at the death of the grandfather the father is alive and in his power, the grandchildren, after the grandfather's death, are in the power of the father; but if at the time of the grandfather's death the father is dead, or not subject to the grandfather, the grandchildren will not fall under his power, but become independent. as deportation to an island for some penal offence entails loss of citizenship, such removal of a man from the list of roman citizens has, like his death, the effect of liberating his children from his power; and conversely, the deportation of a person subject to paternal power terminates the power of the parent. in either case, however, if the condemned person is pardoned by the grace of the emperor, he recovers all his former rights. relegation to an island does not extinguish paternal power, whether it is the parent or the child who is relegated. again, a father's power is extinguished by his becoming a 'slave of punishment,' for instance, by being condemned to the mines or exposed to wild beasts. a person in paternal power does not become independent by entering the army or becoming a senator, for military service or consular dignity does not set a son free from the power of his father. but by our constitution the supreme dignity of the patriciate frees a son from power immediately on the receipt of the imperial patent; for who would allow anything so unreasonable as that, while a father is able by emancipation to release his son from the tie of his power, the imperial majesty should be unable to release from dependence on another the man whom it has selected as a father of the state? again, capture of the father by the enemy makes him a slave of the latter; but the status of his children is suspended by his right of subsequent restoration by postliminium; for on escape from captivity a man recovers all his former rights, and among them the right of paternal power over his children, the law of postliminium resting on a fiction that the captive has never been absent from the state. but if he dies in captivity the son is reckoned to have been independent from the moment of his father's capture. so too, if a son or a grandson is captured by the enemy, the power of his ascendant is provisionally suspended, though he may again be subjected to it by postliminium. this term is derived from 'limen' and 'post,' which explains why we say that the person who has been captured by the enemy and has come back into our territories has returned by postliminium: for just as the threshold forms the boundary of a house, so the ancients represented the boundaries of the empire as a threshold; and this is also the origin of the term 'limes, signifying a kind of end and limit. thus postliminium means that the captive returns by the same threshold at which he was lost. a captive who is recovered after a victory over the enemy is deemed to have returned by postliminium. emancipation also liberates children from the power of the parent. formerly it was effected either by the observance of an old form prescribed by statute by which the son was fictitiously sold and then manumitted, or by imperial rescript. our forethought, however, has amended this by a constitution, which has abolished the old fictitious form, and enabled parents to go directly to a competent judge or magistrate, and in his presence release their sons or daughters, grandsons or granddaughters, and so on, from their power. after this, the father has by the praetor's edict the same rights over the property of the emancipated child as a patron has over the property of his freedman: and if at the time of emancipation the child, whether son or daughter, or in some remoter degree of relationship, is beneath the age of puberty, the father becomes by the emancipation his or her guardian. it is to be noted, however, that a grandfather who has both a son, and by that son a grandson or granddaughter, in his power, may either release the son from his power and retain the grandson or granddaughter, or emancipate both together; and a great-grandfather has the same latitude of choice. again, if a father gives a son whom he has in his power in adoption to the son's natural grandfather or great-grandfather, in accordance with our constitution on this subject, that is to say, by declaring his intention, before a judge with jurisdiction in the matter, in the official records, and in the presence and with the consent of the person adopted, the natural father's power is thereby extinguished, and passes to the adoptive father, adoption by whom under these circumstances retains, as we said, all its old legal consequences. it is to be noted, that if your daughterinlaw conceives by your son, and you emancipate or give the latter in adoption during her pregnancy, the child when born will be in your power; but if the child is conceived after its father's emancipation or adoption, it is in the power of its natural father or its adoptive grandfather, as the case may be. children, whether natural or adoptive, are only very rarely able to compel their parent to release them from his power. title xiii. of guardianships let us now pass on to another classification of persons. persons not subject to power may still be subject either to guardians or to curators, or may be exempt from both forms of control. we will first examine what persons are subject to guardians and curators, and thus we shall know who are exempt from both kinds of control. and first of persons subject to guardianship or tutelage. guardianship, as defined by servius, is authority and control over a free person, given and allowed by the civil law, in order to protect one too young to defend himself: and guardians are those persons who possess this authority and control, their name being derived from their very functions; for they are called guardians as being protectors and defenders, just as those entrusted with the care of sacred buildings are called 'aeditui.' the law allows a parent to appoint guardians in his will for those children in his power who have not attained the age of puberty, without distinction between sons and daughters; but a grandson or granddaughter can receive a testamentary guardian only provided that the death of the testator does not bring them under the power of their own father. thus, if your son is in your power at the time of your death, your grandchildren by him cannot have a guardian given them by your will, although they are in your power, because your death leaves them in the power of their father. and as in many other matters afterborn children are treated on the footing of children born before the execution of the will, so it is ruled that afterborn children, as well as children born before the will was made, may have guardians therein appointed to them, provided that if born in the testator's lifetime they would be family heirs and in his power. if a testamentary guardian be given by a father to his emancipated son, he must be approved by the governor in all cases, though inquiry into the case is unnecessary. title xiv. who can be appointed guardians by will persons who are in the power of others may be appointed testamentary guardians no less than those who are independent; and a man can also validly appoint one of his own slaves as testamentary guardian, giving him at the same time his liberty; and even in the absence of express manumission his freedom is to be presumed to have been tacitly conferred on him, whereby his appointment becomes a valid act, although of course it is otherwise if the testator appointed him guardian in the erroneous belief that he was free. the appointment of another man's slave as guardian, without any addition or qualification, is void, though valid if the words 'when he shall be free' are added: but this latter form is ineffectual if the slave is the testator's own, the appointment being void from the beginning. if a lunatic or minor is appointed testamentary guardian, he cannot act until, if a lunatic, he recovers his faculties, and, if a minor, he attains the age of twentyfive years. there is no doubt that a guardian may be appointed for and from a certain time, or conditionally, or before the institution of the heir. a guardian cannot, however, be appointed for a particular matter or business, because his duties relate to the person, and not merely to a particular business or matter. if a man appoints a guardian to his sons or daughters, he is held to have intended them also for such as may be afterborn, for the latter are included in the terms son and daughter. in the case of grandsons, a question may arise whether they are implicitly included in an appointment of guardians to sons; to which we reply, that they are included in an appointment of guardians if the term used is 'children,' but not if it is 'sons': for the words son and grandson have quite different meanings. of course an appointment to afterborn children includes all children, and not sons only. title xv. of the statutory guardianship of agnates in default of a testamentary guardian, the statute of the twelve tables assigns the guardianship to the nearest agnates, who are hence called statutory guardians. agnates are persons related to one another by males, that is, through their male ascendants; for instance, a brother by the same father, a brother's son, or such son's son, a father's brother, his son or son's son. but persons related only by blood through females are not agnates, but merely cognates. thus the son of your father's sister is no agnate of yours, but merely your cognate, and vice versa; for children are member's of their father's family, and not of your mother's. it was said that the statute confers the guardianship, in case of intestacy, on the nearest agnates; but by intestacy here must be understood not only complete intestacy of a person having power to appoint a testamentary guardian, but also the mere omission to make such appointment, and also the case of a person appointed testamentary guardian dying in the testator's lifetime. loss of status of any kind ordinarily extinguishes rights by agnation, for agnation is a title of civil law. not every kind of loss of status, however, affects rights by cognation; because civil changes cannot affect rights annexed to a natural title to the same extent that they can affect those annexed to a civil one. title xvi. of loss of status loss of status, or change in one's previous civil rights, is of three orders, greatest, minor or intermediate, and least. the greatest loss of status is the simultaneous loss of citizenship and freedom, exemplified in those persons who by a terrible sentence are made 'slaves of punishment,' in freedmen condemned for ingratitude to their patrons, and in those who allow themselves to be sold in order to share the purchase money when paid. minor or intermediate loss of status is loss of citizenship unaccompanied by loss of liberty, and is incident to interdiction of fire and water and to deportation to an island. the least loss of status occurs when citizenship and freedom are retained, but a man's domestic position is altered, and is exemplified by adrogation and emancipation. a slave does not suffer loss of status by being manumitted, for while a slave he had no civil rights: and where the change is one of dignity, rather than of civil rights, there is no loss of status; thus it is no loss of status to be removed from the senate. when it was said that rights by cognation are not affected by loss of status, only the least loss of status was meant; by the greatest loss of status they are destroyed--for instance, by a cognate's becoming a slave--and are not recovered even by subsequent manumission. again, deportation to an island, which entails minor or intermediate loss of status, destroys rights by cognation. when agnates are entitled to be guardians, it is not all who are so entitled, but only those of the nearest degree, though if all are in the same degree, all are entitled. title xvii. of the statutory guardianship of patrons the same statute of the twelve tables assigns the guardianship of freedmen and freedwomen to the patron and his children, and this guardianship, like that of agnates, is called statutory guardianship; not that it is anywhere expressly enacted in that statute, but because its interpretation by the jurists has procured for it as much reception as it could have obtained from express enactment: the fact that the inheritance of a freedman or freedwoman, when they die intestate, was given by the statute to the patron and his children, being deemed a proof that they were intended to have the guardianship also, partly because in dealing with agnates the statute coupled guardianship with succession, and partly on the principle that where the advantage of the succession is, there, as a rule, ought too to be the burden of the guardianship. we say 'as a rule,' because if a slave below the age of puberty is manumitted by a woman, though she is entitled, as patroness, to the succession, another person is guardian. title xviii. of the statutory guardianship of parents the analogy of the patron guardian led to another kind of socalled statutory guardianship, namely that of a parent over a son or daughter, or a grandson or granddaughter by a son, or any other descendant through males, whom he emancipates below the age of puberty: in which case he will be statutory guardian. title xix. of fiduciary guardianship there is another kind of guardianship known as fiduciary guardianship, which arises in the following manner. if a parent emancipates a son or daughter, a grandson or granddaughter, or other descendant while under the age of puberty, he becomes their statutory guardian: but if at his death he leaves male children, they become fiduciary guardians of their own sons, or brothers and sisters, or other relatives who had been thus emancipated. but on the decease of a patron who is statutory guardian his children become statutory guardians also; for a son of a deceased person, supposing him not to have been emancipated during his father's lifetime, becomes independent at the latter's death, and does not fall under the power of his brothers, nor, consequently, under their guardianship; whereas a freedman, had he remained a slave, would at his master's death have become the slave of the latter's children. the guardianship, however, is not cast on these persons unless they are of full age, which indeed has been made a general rule in guardianship and curatorship of every kind by our constitution. title xx. of atilian guardians, and those appointed under the lex iulia et titia failing every other kind of guardian, at rome one used to be appointed under the lex atilia by the praetor of the city and the majority of the tribunes of the people; in the provinces one was appointed under the lex iulia et titia by the president of the province. again, on the appointment of a testamentary guardian subject to a condition, or on an appointment limited to take effect after a certain time, a substitute could be appointed under these statutes during the pendency of the condition, or until the expiration of the term: and even if no condition was attached to the appointment of a testamentary guardian, a temporary guardian could be obtained under these statutes until the succession had vested. in all these cases the office of the guardian so appointed determined as soon as the condition was fulfilled, or the term expired, or the succession vested in the heir. on the capture of a guardian by the enemy, the same statutes regulated the appointment of a substitute, who continued in office until the return of the captive; for if he returned, he recovered the guardianship by the law of postliminium. but guardians have now ceased to be appointed under these statutes, the place of the magistrates directed by them to appoint being taken, first, by the consuls, who began to appoint guardians to pupils of either sex after inquiry into the case, and then by the praetors, who were substituted for the consuls by the imperial constitutions; for these statutes contained no provisions as to security to be taken from guardians for the safety of their pupils' property, or compelling them to accept the office in case of disinclination. under the present law, guardians are appointed at rome by the prefect of the city, and by the praetor when the case falls within his jurisdiction; in the provinces they are appointed, after inquiry, by the governor, or by inferior magistrates at the latter's behest if the pupil's property is of no great value. by our constitution, however, we have done away with all difficulties of this kind relating to the appointing person, and dispensed with the necessity of waiting for an order from the governor, by enacting that if the property of the pupil or adult does not exceed five hundred solidi, guardians or curators shall be appointed by the officers known as defenders of the city, along with the holy bishop of the place, or in the presence of other public persons, or by the magistrates, or by the judge of the city of alexandria; security being given in the amounts required by the constitution, and those who take it being responsible if it be insufficient. the wardship of children below the age of puberty is in accordance with the law of nature, which prescribes that persons of immature years shall be under another's guidance and control. as guardians have the management of their pupils' business, they are liable to be sued on account of their administration as soon as the pupil attains the age of puberty. title xxi. of the authority of guardians in some cases a pupil cannot lawfully act without the authority of his guardian, in others he can. such authority, for instance, is not necessary when a pupil stipulates for the delivery of property, though it is otherwise where he is the promisor; for it is an established rule that the guardian's authority is not necessary for any act by which the pupil simply improves his own position, though it cannot be dispensed with where he proposes to make it worse. consequently, unless the guardian authorizes all transactions generating bilateral obligations, such as sale, hire, agency, and deposit, the pupil is not bound, though he can compel the other contracting party to discharge his own obligation. pupils, however, require their guardian's authority before they can enter on an inheritance, demand the possession of goods, or accept an inheritance by way of trust, even though such act be advantageous to them, and involves no chance of loss. if the guardian thinks the transaction will be beneficial to his pupil, his authority should be given presently and on the spot. subsequent ratification, or authority given by letter, has no effect. in case of a suit between guardian and pupil, as the former cannot lawfully authorize an act in which he is personally concerned or interested, a curator is now appointed, in lieu of the old praetorian guardian, with whose cooperation the suit is carried on, his office determining as soon as it is decided. title xxii. of the modes in which guardianship is terminated pupils of either sex are freed from guardianship when they reach the age of puberty, which the ancients were inclined to determine, in the case of males, not only by age, but also by reference to the physical development of individuals. our majesty, however, has deemed it not unworthy of the purity of our times to apply in the case of males also the moral considerations which, even among the ancients, forbade in the case of females as indecent the inspection of the person. consequently by the promulgation of our sacred constitution we have enacted that puberty in males shall be considered to commence immediately on the completion of the fourteenth year, leaving unaltered the rule judiciously laid down by the ancients as to females, according to which they are held fit for marriage after completing their twelfth year. again, tutelage is terminated by adrogation or deportation of the pupil before he attains the age of puberty, or by his being reduced to slavery or taken captive by the enemy. so too if a testamentary guardian be appointed to hold office until the occurrence of a condition, on this occurrence his office determines. similarly tutelage is terminated by the death either of pupil or of guardian. if a guardian suffers such a loss of status as entails loss of either liberty or citizenship, his office thereby completely determines. it is, however, only the statutory kind of guardianship which is destroyed by a guardian's undergoing the least loss of status, for instance, by his giving himself in adoption. tutelage is in every case put an end to by the pupil's suffering loss of status, even of the lowest order. testamentary guardians appointed to serve until a certain time lay down their office when that time arrives. finally, persons cease to be guardians who are removed from their office on suspicion, or who are enabled to lay down the burden of the tutelage by a reasonable ground of excuse, according to the rules presently stated. title xxiii. of curators males, even after puberty, and females after reaching marriageable years, receive curators until completing their twenty-fifth year, because, though past the age fixed by law as the time of puberty, they are not yet old enough to administer their own affairs. curators are appointed by the same magistrates who appoint guardians. they cannot legally be appointed by will, though such appointment, if made, is usually confirmed by an order of the praetor or governor of the province. a person who has reached the age of puberty cannot be compelled to have a curator, except for the purpose of conducting a suit: for curators, unlike guardians, can be appointed for a particular matter. lunatics and prodigals, even though more than twentyfive years of age, are by the statute of the twelve tables placed under their agnates as curators; but now, as a rule, curators are appointed for them at rome by the prefect of the city or praetor, and in the provinces by the governor, after inquiry into the case. curators should also be given to persons of weak mind, to the deaf, the dumb, and those suffering from chronic disease, because they are not competent to manage their own affairs. sometimes even pupils have curators, as, for instance, when a statutory guardian is unfit for his office: for if a pupil already has one guardian, he cannot have another given him. again, if a testamentary guardian, or one appointed by the praetor or governor, is not a good man of business, though perfectly honest in his management of the pupil's affairs, it is usual for a curator to be appointed to act with him. again, curators are usually appointed in the room of guardians temporarily excused from the duties of their office. if a guardian is prevented from managing his pupil's affairs by illhealth or other unavoidable cause, and the pupil is absent or an infant, the praetor or governor of the province will, at the guardian's risk, appoint by decree a person selected by the latter to act as agent of the pupil. title xxiv. of the security to be given by guardians and curators to prevent the property of pupils and of persons under curators from being wasted or diminished by their curators or guardians the praetor provides for security being given by the latter against maladministration. this rule, however, is not without exceptions, for testamentary guardians are not obliged to give security, the testator having had full opportunities of personally testing their fidelity and carefulness, and guardians and curators appointed upon inquiry are similarly exempted, because they have been expressly chosen as the best men for the place. if two or more are appointed by testament, or by a magistrate upon inquiry, any one of them may offer security for indemnifying the pupil or person to whom he is curator against loss, and be preferred to his colleague, in order that he may either obtain the sole administration, or else induce his colleague to offer larger security than himself, and so become sole administrator by preference. thus he cannot directly call upon his colleague to give security; he ought to offer it himself, and so give his colleague the option of receiving security on the one hand, or of giving it on the other. if none of them offer security, and the testator left directions as to which was to administer the property, this person must undertake it: in default of this, the office is cast by the praetor's edict on the person whom the majority of guardians or curators shall choose. if they cannot agree, the praetor must interpose. the same rule, authorizing a majority to elect one to administer the property, is to be applied where several are appointed after inquiry by a magistrate. it is to be noted that, besides the liability of guardians and curators to their pupils, or the persons for whom they act, for the management of their property, there is a subsidiary action against the magistrate accepting the security, which may be resorted to where all other remedies prove inadequate, and which lies against those magistrates who have either altogether omitted to take security from guardians or curators, or taken it to an insufficient amount. according to the doctrines stated by the jurists, as well as by imperial constitutions, this action may be brought against the magistrate's heirs as well as against him personally; and these same constitutions ordain that guardians or curators who make default in giving security may be compelled to do so by legal distraint of their goods. this action, however, will not lie against the prefect of the city, the praetor, or the governor of a province, or any other magistrate authorized to appoint guardians, but only against those to whose usual duties the taking of security belongs. title xxv. of guardians' and curators' grounds of exemption there are various grounds on which persons are exempted from serving the office of guardian or curator, of which the most common is their having a certain number of children, whether in power or emancipated. if, that is to say, a man has, in rome, three children living, in italy four, or in the provinces five, he may claim exemption from these, as from other public offices; for it is settled that the office of a guardian or curator is a public one. adopted children cannot be reckoned for this purpose, though natural children given in adoption to others may: similarly grandchildren by a son may be reckoned, so as to represent their father, while those by a daughter may not. it is, however, only living children who avail to excuse their fathers from serving as guardian or curator; such as have died are of no account, though the question has arisen whether this rule does not admit of an exception where they have died in war; and it is agreed that this is so, but only where they have fallen on the field of battle: for these, because they have died for their country, are deemed to live eternally in fame. the emperor marcus, too, replied by rescript, as is recorded in his semestria, that employment in the service of the treasury is a valid excuse from serving as guardian or curator so long as that employment lasts. again, those are excused from these offices who are absent in the service of the state; and a person already guardian or curator who has to absent himself on public business is excused from acting in either of these capacities during such absence, a curator being appointed to act temporarily in his stead. on his return, he has to resume the burden of tutelage, without being entitled to claim a year's exemption, as has been settled since the opinion of papinian was delivered in the fifth book of his replies; for the year's exemption or vacation belongs only to such as are called to a new tutelage. by a rescript of the emperor marcus persons holding any magistracy may plead this as a ground of exemption, though it will not enable them to resign an office of this kind already entered upon. no guardian or curator can excuse himself on the ground of an action pending between himself and his ward, unless it relates to the latter's whole estate or to an inheritance. again, a man who is already guardian or curator to three persons without having sought after the office is entitled to exemption from further burdens of the kind so long as he is actually engaged with these, provided that the joint guardianship of several pupils, or administration of an undivided estate, as where the wards are brothers, is reckoned as one only. if a man can prove that through poverty he is unequal to the burden of the office, this, according to rescripts of the imperial brothers and of the emperor marcus, is a valid ground of excuse. illhealth again is a sufficient excuse if it be such as to prevent a man from attending to even his own affairs: and the emperor pius decided by a rescript that persons unable to read ought to be excused, though even these are not incapable of transacting business. a man too is at once excused if he can show that a father has appointed him testamentary guardian out of enmity, while conversely no one can in any case claim exemption who promised the ward's father that he would act as guardian to them: and it was settled by a rescript of m. aurelius and l. verus that the allegation that one was unacquainted with the pupil's father cannot be admitted as a ground of excuse. enmity against the ward's father, if extremely bitter, and if there was no reconciliation, is usually accepted as a reason for exemption from the office of guardian; and similarly a person can claim to be excused whose status or civil rights have been disputed by the father of the ward in an action. again, a person over seventy years of age can claim to be excused from acting as guardian or curator, and by the older law persons less than twentyfive were similarly exempted. but our constitution, having forbidden the latter to aspire to these functions, has made excuses unnecessary. the effect of this enactment is that no pupil or person under twentyfive years of age is to be called to a statutory guardianship; for it was most incongruous to place persons under the guardianship or administration of those who are known themselves to need assistance in the management of their own affairs, and are themselves governed by others. the same rule is to be observed with soldiers, who, even though they desire it, may not be admitted to the office of guardian: and finally grammarians, rhetoricians, and physicians at rome, and those who follow these callings in their own country and are within the number fixed by law, are exempted from being guardians or curators. if a person who has several grounds of excuse wishes to obtain exemption, and some of them are not allowed, he is not prohibited from alleging others, provided he does this within the time prescribed. those desirous of excusing themselves do not appeal, but ought to allege their grounds of excuse within fifty days next after they hear of their appointment, whatever the form of the latter, and whatever kind of guardians they may be, if they are within a hundred miles of the place where they were appointed: if they live at a distance of more than a hundred miles, they are allowed a day for every twenty miles, and thirty days in addition, but this time, as scaevola has said, must never be so reckoned as to amount to less than fifty days. a person appointed guardian is deemed to be appointed to the whole patrimony; and after he has once acted as guardian he cannot be compelled against his will to become the same person's curator--not even if the father who appointed him testamentary guardian added in the will that he made him curator, too, as soon as the ward reached fourteen years of age--this having been decided by a rescript of the emperors severus and antoninus. another rescript of the same emperors settled that a man is entitled to be excused from becoming his own wife's curator, even after intermeddling with her affairs. no man is discharged from the burden of guardianship who has procured exemption by false allegations. title xxvi. of guardians or curators who are suspected the accusation of guardians or curators on suspicion originated in the statute of the twelve tables; the removal of those who are accused on suspicion is part of the jurisdiction, at rome, of the praetor, and in the provinces of their governors and of the proconsul's legate. having shown what magistrates can take cognizance of this subject, let us see what persons are liable to be accused on suspicion. all guardians are liable, whether appointed by testament or otherwise; consequently even a statutory guardian may be made the object of such an accusation. but what is to be said of a patron guardian? even here we must reply that he too is liable; though we must remember that his reputation must be spared in the event of his removal on suspicion. the next point is to see what persons may bring this accusation; and it is to be observed that the action partakes of a public character, that is to say, is open to all. indeed, by a rescript of severus and antoninus even women are made competent to bring it, but only those who can allege a close tie of affection as their motive; for instance, a mother, nurse, grandmother, or sister. and the praetor will allow any woman to prefer the accusation in whom he finds an affection real enough to induce her to save a pupil from suffering harm, without seeming to be more forward than becomes her sex. persons below the age of puberty cannot accuse their guardians on suspicion; but by a rescript of severus and antoninus it has been permitted to those who have reached that age to deal thus with their curators, after taking the advice of their nearest relations. a guardian is 'suspected' who does not faithfully discharge his tutorial functions, though he may be perfectly solvent, as was the opinion also of julian. indeed, julian writes that a guardian may be removed on suspicion before he commences his administration, and a constitution has been issued in accordance with this view. a person removed from office on suspicion incurs infamy if his offence was fraud, but not if it was merely negligence. as papinian held, on a person being accused on suspicion he is suspended from the administration until the action is decided. if a guardian or curator who is accused on suspicion dies after the commencement of the action, but before it has been decided, the action is thereby extinguished; and if a guardian fails to appear to a summons of which the object is to fix by judicial order a certain rate of maintenance for the pupil, the rescript of the emperors severus and antoninus provides that the pupil may be put in possession of the guardian's property, and orders the sale of the perishable portions thereof after appointment of a curator. consequently, a guardian may be removed as suspected who does not provide his pupil with sufficient maintenance. if, on the other hand, the guardian appears, and alleges that the pupil's property is too inconsiderable to admit of maintenance being decreed, and it is shown that the allegation is false, the proper course is for him to be sent for punishment to the prefect of the city, like those who purchase a guardianship with bribery. so too a freedman, convicted of having acted fraudulently as guardian of the sons or grandsons of his patron, should be sent to the prefect of the city for punishment. finally, it is to be noted, that guardians or curators who are guilty of fraud in their administration must be removed from their office even though they offer to give security, for giving security does not change the evil intent of the guardian, but only gives him a larger space of time wherein he may injure the pupil's property: for a man's mere character or conduct may be such as to justify one's deeming him 'suspected.' no guardian or curator, however, may be removed on suspicion merely because he is poor, provided he is also faithful and diligent. book ii. titles i. of the different kinds of things ii. of incorporeal things iii. of servitudes iv. of usufruct v. of use and habitation vi. of usucapion and long possession vii. of gifts viii. of persons who may, and who may not alienate ix. of persons through whom we acquire x. of the execution of wills xi. of soldiers' wills xii. of persons incapable of making wills xiii. of the disinherison of children xiv. of the institution of the heir xv. of ordinary substitution xvi. of pupillary substitution xvii. of the modes in which wills become void xviii. of an unduteous will xix. of the kinds of and differences between heirs xx. of legacies xxi. of the ademption and transference of legacies xxii. of the lex falcidia xxiii. of trust inheritances xxiv. of trust bequests of single things xxv. of codicils title i. of the different kinds of things in the preceding book we have expounded the law of persons: now let us proceed to the law of things. of these, some admit of private ownership, while others, it is held, cannot belong to individuals: for some things are by natural law common to all, some are public, some belong to a society or corporation, and some belong to no one. but most things belong to individuals, being acquired by various titles, as will appear from what follows. thus, the following things are by natural law common to all--the air, running water, the sea, and consequently the seashore. no one therefore is forbidden access to the seashore, provided he abstains from injury to houses, monuments, and buildings generally; for these are not, like the sea itself, subject to the law of nations. on the other hand, all rivers and harbours are public, so that all persons have a right to fish therein. the seashore extends to the limit of the highest tide in time of storm or winter. again, the public use of the banks of a river, as of the river itself, is part of the law of nations; consequently every one is entitled to bring his vessel to the bank, and fasten cables to the trees growing there, and use it as a resting-place for the cargo, as freely as he may navigate the river itself. but the ownership of the bank is in the owner of the adjoining land, and consequently so too is the ownership of the trees which grow upon it. again, the public use of the seashore, as of the sea itself, is part of the law of nations; consequently every one is free to build a cottage upon it for purposes of retreat, as well as to dry his nets and haul them up from the sea. but they cannot be said to belong to any one as private property, but rather are subject to the same law as the sea itself, with the soil or sand which lies beneath it. as examples of things belonging to a society or corporation, and not to individuals, may be cited buildings in cities--theatres, racecourses, and such other similar things as belong to cities in their corporate capacity. things which are sacred, devoted to superstitious uses, or sanctioned, belong to no one, for what is subject to divine law is no one's property. those things are sacred which have been duly consecrated to god by his ministers, such as churches and votive offerings which have been properly dedicated to his service; and these we have by our constitution forbidden to be alienated or pledged, except to redeem captives from bondage. if any one attempts to consecrate a thing for himself and by his own authority, its character is unaltered, and it does not become sacred. the ground on which a sacred building is erected remains sacred even after the destruction of the building, as was declared also by papinian. any one can devote a place to superstitious uses of his own free will, that is to say, by burying a dead body in his own land. it is not lawful, however, to bury in land which one owns jointly with some one else, and which has not hitherto been used for this purpose, without the other's consent, though one may lawfully bury in a common sepulchre even without such consent. again, the owner may not devote a place to superstitious uses in which another has a usufruct, without the consent of the latter. it is lawful to bury in another man's ground, if he gives permission, and the ground thereby becomes religious even though he should not give his consent to the interment till after it has taken place. sanctioned things, too, such as city walls and gates, are, in a sense, subject to divine law, and therefore are not owned by any individual. such walls are said to be 'sanctioned,' because any offence against them is visited with capital punishment; for which reason those parts of the laws in which we establish a penalty for their transgressors are called sanctions. things become the private property of individuals in many ways; for the titles by which we acquire ownership in them are some of them titles of natural law, which, as we said, is called the law of nations, while some of them are titles of civil law. it will thus be most convenient to take the older law first: and natural law is clearly the older, having been instituted by nature at the first origin of mankind, whereas civil laws first came into existence when states began to be founded, magistrates to be created, and laws to be written. wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for natural reason admits the title of the first occupant to that which previously had no owner. so far as the occupant's title is concerned, it is immaterial whether it is on his own land or on that of another that he catches wild animals or birds, though it is clear that if he goes on another man's land for the sake of hunting or fowling, the latter may forbid him entry if aware of his purpose. an animal thus caught by you is deemed your property so long as it is completely under your control; but so soon as it has escaped from your control, and recovered its natural liberty, it ceases to be yours, and belongs to the first person who subsequently catches it. it is deemed to have recovered its natural liberty when you have lost sight of it, or when, though it is still in your sight, it would be difficult to pursue it. it has been doubted whether a wild animal becomes your property immediately you have wounded it so severely as to be able to catch it. some have thought that it becomes yours at once, and remains so as long as you pursue it, though it ceases to be yours when you cease the pursuit, and becomes again the property of any one who catches it: others have been of opinion that it does not belong to you till you have actually caught it. and we confirm this latter view, for it may happen in many ways that you will not capture it. bees again are naturally wild; hence if a swarm settles on your tree, it is no more considered yours, until you have hived it, than the birds which build their nests there, and consequently if it is hived by some one else, it becomes his property. so too any one may take the honeycombs which bees may chance to have made, though, of course, if you see some one coming on your land for this purpose, you have a right, to forbid him entry before that purpose is effected. a swarm which has flown from your hive is considered to remain yours so long as it is in your sight and easy of pursuit: otherwise it belongs to the first person who catches it. peafowl too and pigeons are naturally wild, and it is no valid objection that they are used to return to the same spots from which they fly away, for bees do this, and it is admitted that bees are wild by nature; and some people have deer so tame that they will go into the woods and yet habitually come back again, and still no one denies that they are naturally wild. with regard, however, to animals which have this habit of going away and coming back again, the rule has been established that they are deemed yours so long as they have the intent to return: for if they cease to have this intention they cease to be yours, and belong to the first person who takes them; and when they lose the habit they seem also to have lost the intention of returning. fowls and geese are not naturally wild, as is shown by the fact that there are some kinds of fowls and geese which we call wild kinds. hence if your geese or fowls are frightened and fly away, they are considered to continue yours wherever they may be, even though you have lost sight of them; and any one who keeps them intending thereby to make a profit is held guilty of theft. things again which we capture from the enemy at once become ours by the law of nations, so that by this rule even free men become our slaves, though, if they escape from our power and return to their own people, they recover their previous condition. precious stones too, and gems, and all other things found on the seashore, become immediately by natural law the property of the finder: and by the same law the young of animals of which you are the owner become your property also. moreover, soil which a river has added to your land by alluvion becomes yours by the law of nations. alluvion is an imperceptible addition; and that which is added so gradually that you cannot perceive the exact increase from one moment of time to another is added by alluvion. if, however, the violence of the stream sweeps away a parcel of your land and carries it down to the land of your neighbour it clearly remains yours; though of course if in the process of time it becomes firmly attached to your neighbour's land, they are deemed from that time to have become part and parcel thereof. when an island rises in the sea, though this rarely happens, it belongs to the first occupant; for, until occupied, it is held to belong to no one. if, however (as often occurs), an island rises in a river, and it lies in the middle of the stream, it belongs in common to the landowners on either bank, in proportion to the extent of their riparian interest; but if it lies nearer to one bank than to the other, it belongs to the landowners on that bank only. if a river divides into two channels, and by uniting again these channels transform a man's land into an island, the ownership of that land is in no way altered: but if a river entirely leaves its old channel, and begins to run in a new one, the old channel belongs to the landowners on either side of it in proportion to the extent of their riparian interest, while the new one acquires the same legal character as the river itself, and becomes public. but if after a while the river returns to its old channel, the new channel again becomes the property of those who possess the land along its banks. it is otherwise if one's land is wholly flooded, for a flood does not permanently alter the nature of the land, and consequently if the water goes back the soil clearly belongs to its previous owner. when a man makes a new object out of materials belonging to another, the question usually arises, to which of them, by natural reason, does this new object belong--to the man who made it, or to the owner of the materials? for instance, one man may make wine, or oil, or corn, out of another man's grapes, olives, or sheaves; or a vessel out of his gold, silver, or bronze; or mead of his wine and honey; or a plaster or eyesalve out of his drugs; or cloth out of his wool; or a ship, a chest, or a chair out of his timber. after many controversies between the sabinians and proculians, the law has now been settled as follows, in accordance with the view of those who followed a middle course between the opinions of the two schools. if the new object can be reduced to the materials out of which it was made, it belongs to the owner of the materials; if not, it belongs to the person who made it. for instance, a vessel can be melted down, and so reduced to the rude material--bronze, silver, or gold--of which it is made: but it is impossible to reconvert wine into grapes, oil into olives, or corn into sheaves, or even mead into the wine and honey out of which it was compounded. but if a man makes a new object out of materials which belong partly to him and partly to another--for instance, mead of his own wine and another's honey, or a plaster or eyesalve of drugs which are not all his own, or cloth of wool which belongs only in part to him--in this case there can be no doubt that the new object belongs to its creator, for he has contributed not only part of the material, but the labour by which it was made. if, however, a man weaves into his own cloth another man's purple, the latter, though the more valuable, becomes part of the cloth by accession; but its former owner can maintain an action of theft against the purloiner, and also a condiction, or action for reparative damages, whether it was he who made the cloth, or some one else; for although the destruction of property is a bar to a real action for its recovery, it is no bar to a condiction against the thief and certain other possessors. if materials belonging to two persons are mixed by consent--for instance, if they mix their wines, or melt together their gold or their silver--the result of the mixture belongs to them in common. and the law is the same if the materials are of different kinds, and their mixture consequently results in a new object, as where mead is made by mixing wine and honey, or electrum by mixing gold and silver; for even here it is not doubted that the new object belongs in common to the owners of the materials. and if it is by accident, and not by the intention of the owners, that materials have become mixed, the law is the same, whether they were of the same or of different kinds. but if the corn of titius has become mixed with yours, and this by mutual consent, the whole will belong to you in common, because the separate bodies or grains, which before belonged to one or the other of you in severalty, have by consent on both sides been made your joint property. if, however, the mixture was accidental, or if titius mixed the two parcels of corn without your consent, they do not belong to you in common, because the separate grains remain distinct, and their substance is unaltered; and in such cases the corn no more becomes common property than does a flock formed by the accidental mixture of titius's sheep with yours. but if either of you keeps the whole of the mixed corn, the other can bring a real action for the recovery of such part of it as belongs to him, it being part of the province of the judge to determine the quality of the wheat which belonged to each. if a man builds upon his own ground with another's materials, the building is deemed to be his property, for buildings become a part of the ground on which they stand. and yet he who was owner of the materials does not cease to own them, but he cannot bring a real action for their recovery, or sue for their production, by reason of a clause in the twelve tables providing that no one shall be compelled to take out of his house materials (tignum), even though they belong to another, which have once been built into it, but that double their value may be recovered by the action called 'de tigno iniuncto.' the term tignum includes every kind of material employed in building, and the object of this provision is to avoid the necessity of having buildings pulled down; but if through some cause or other they should be destroyed, the owner of the materials, unless he has already sued for double value, may bring a real action for recovery, or a personal action for production. on the other hand, if one man builds a house on another's land with his own materials, the house belongs to the owner of the land. in this case, however, the right of the previous owner in the materials is extinguished, because he is deemed to have voluntarily parted with them, though only, of course, if he was aware that the land on which he was building belonged to another man. consequently, though the house should be destroyed, he cannot claim the materials by real action. of course, if the builder of the house has possession of the land, and the owner of the latter claims the house by real action, but refuses to pay for the materials and the workmen's wages, he can be defeated by the plea of fraud, provided the builder's possession is in good faith: for if he knew that the land belonged to some one else it may be urged against him that he was to blame for rashly building on land owned to his knowledge by another man. if titius plants another man's shrub in land belonging to himself, the shrub will become his; and, conversely, if he plants his own shrub in the land of maevius, it will belong to maevius. in neither case, however, will the ownership be transferred until the shrub has taken root: for, until it has done this, it continues to belong to the original owner. so strict indeed is the rule that the ownership of the shrub is transferred from the moment it has taken root, that if a neighbour's tree grows so close to the land of titius that the soil of the latter presses round it, whereby it drives its roots entirely into the same, we say the tree becomes the property of titius, on the ground that it would be unreasonable to allow the owner of a tree to be a different person from the owner of the land in which it is rooted. consequently, if a tree which grows on the boundaries of two estates drives its roots even partially into the neighbour's soil, it becomes the common property of the two landowners. on the same principle corn is reckoned to become a part of the soil in which it is sown. but exactly as (according to what we said) a man who builds on another's land can defend himself by the plea of fraud when sued for the building by the owner of the land, so here too one who has in good faith and at his own expense put crops into another man's soil can shelter himself behind the same plea, if refused compensation for labour and outlay. writing again, even though it be in letters of gold, becomes a part of the paper or parchment, exactly as buildings and sown crops become part of the soil, and consequently if titius writes a poem, or a history, or a speech on your paper and parchment, the whole will be held to belong to you, and not to titius. but if you sue titius to recover your books or parchments, and refuse to pay the value of the writing, he will be able to defend himself by the plea of fraud, provided that he obtained possession of the paper or parchment in good faith. where, on the other hand, one man paints a picture on another's board, some think that the board belongs, by accession, to the painter, others, that the painting, however great its excellence, becomes part of the board. the former appears to us the better opinion, for it is absurd that a painting by apelles or parrhasius should be an accessory of a board which, in itself, is thoroughly worthless. hence, if the owner of the board has possession of the picture, and is sued for it by the painter, who nevertheless refuses to pay the cost of the board, he will be able to repel him by the plea of fraud. if, on the other hand, the painter has possession, it follows from what has been said that the former owner of the board, [if he is to be able to sue at all], must claim it by a modified and not by a direct action; and in this case, if he refuses to pay the cost of the picture, he can be repelled by the plea of fraud, provided that the possession of the painter be in good faith; for it is clear, that if the board was stolen by the painter, or some one else, from its former owner, the latter can bring the action of theft. if a man in good faith buys land from another who is not its owner, though he believed he was, or acquires it in good faith by gift or some other lawful title, natural reason directs that the fruits which he has gathered shall be his, in consideration of his care and cultivation: consequently if the owner subsequently appears and claims the land by real action, he cannot sue for fruits which the possessor has consumed. this, however, is not allowed to one who takes possession of land which to his knowledge belongs to another person, and therefore he is obliged not only to restore the land, but to make compensation for fruits even though they have been consumed. a person who has a usufruct in land does not become owner of the fruits which grow thereon until he has himself gathered them; consequently fruits which, at the moment of his decease, though ripe, are yet ungathered, do not belong to his heir, but to the owner of the land. what has been said applies also in the main to the lessee of land. the term 'fruits,' when used of animals, comprises their young, as well as milk, hair, and wool; thus lambs, kids, calves, and foals, belong at once, by the natural law of ownership, to the fructuary. but the term does not include the offspring of a female slave, which consequently belongs to her master; for it seemed absurd to reckon human beings as fruits, when it is for their sake that all other fruits have been provided by nature. the usufructuary of a flock, as julian held, ought to replace any of the animals which die from the young of the rest, and, if his usufruct be of land, to replace dead vines or trees; for it is his duty to cultivate according to law and use them like a careful head of a family. if a man found treasure in his own land, the emperor hadrian, following natural equity, adjudged to him the ownership of it, as he also did to a man who found one by accident in soil which was sacred or religious. if he found it in another man's land by accident, and without specially searching for it, he gave half to the finder, half to the owner of the soil; and upon this principle, if a treasure were found in land belonging to the emperor, he decided that half should belong to the latter, and half to the finder; and consistently with this, if a man finds one in land which belongs to the imperial treasury or the people, half belongs to him, and half to the treasury or the state. delivery again is a mode in which we acquire things by natural law; for it is most agreeable to natural equity that where a man wishes to transfer his property to another person his wish should be confirmed. consequently corporeal things, whatever be their nature, admit of delivery, and delivery by their owner makes them the property of the alienee; this, for instance, is the mode of alienating stipendiary and tributary estates, that is to say, estates lying in provincial soil; between which, however, and estates in italy there now exists, according to our constitution, no difference. and ownership is transferred whether the motive of the delivery be the desire to make a gift, to confer a dowry, or any other motive whatsoever. when, however, a thing is sold and delivered, it does not become the purchaser's property until he has paid the price to the vendor, or satisfied him in some other way, as by getting some one else to accept liability for him, or by pledge. and this rule, though laid down also in the statute of the twelve tables, is rightly said to be a dictate of the law of all nations, that is, of natural law. but if the vendor gives the purchaser credit, the goods sold belong to the latter at once. it is immaterial whether the person who makes delivery is the owner himself, or some one else acting with his consent. consequently, if any one is entrusted by an owner with the management of his business at his own free discretion, and in the execution of his commission sells and delivers any article, he makes the receiver its owner. in some cases even the owner's bare will is sufficient, without delivery, to transfer ownership. for instance, if a man sells or makes you a present of a thing which he has previously lent or let to you or placed in your custody, though it was not from that motive he originally delivered it to you, yet by the very fact that he suffers it to be yours you at once become its owner as fully as if it had been originally delivered for the purpose of passing the property. so too if a man sells goods lying in a warehouse, he transfers the ownership of them to the purchaser immediately he has delivered to the latter the keys of the warehouse. nay, in some cases the will of the owner, though directly only towards an uncertain person, transfers the ownership of the thing, as for instance when praetors and consuls throw money to a crowd: here they know not which specific coin each person will get, yet they make the unknown recipient immediately owner, because it is their will that each shall have what he gets. accordingly, it is true that if a man takes possession of property abandoned by its previous owner, he at once becomes its owner himself: and a thing is said to be abandoned which its owner throws away with the deliberate intention that it shall no longer be part of his property, and of which, consequently, he immediately ceases to be the owner. it is otherwise with things which are thrown overboard during a storm, in order to lighten the ship; in the ownership of these things there is no change, because the reason for which they are thrown overboard is obviously not that the owner does not care to own them any longer, but that he and the ship besides may be more likely to escape the perils of the sea. consequently any one who carries them off after they are washed on shore, or who picks them up at sea and keeps them, intending to make a profit thereby, commits a theft; for such things seem to be in much the same position as those which fall out of a carriage in motion unknown to their owners. title ii. of incorporeal things some things again are corporeal, and others incorporeal. those are corporeal which in their own nature are tangible, such as land, slaves, clothing, gold, silver, and others innumerable. things incorporeal are such as are intangible: rights, for instance, such as inheritance, usufruct, and obligations, however acquired. and it is no objection to this definition that an inheritance comprises things which are corporeal; for the fruits of land enjoyed by a usufructuary are corporeal too, and obligations generally relate to the conveyance of something corporeal, such as land, slaves, or money, and yet the right of succession, the right of usufruct, and the right existing in every obligation, are incorporeal. so too the rights appurtenant to land, whether in town or country, which are usually called servitudes, are incorporeal things. title iii. of servitudes the following are rights appurtenant to country estates: 'iter,' the right of passage at will for a man only, not of driving beast or vehicles; 'actus,' the right of driving beasts or vehicles (of which two the latter contains the former, though the former does not contain the latter, so that a man who has iter has not necessarily actus, while if he has actus he has also iter, and consequently can pass himself even though unaccompanied by cattle); 'via,' which is the right of going, of driving any thing whatsoever, and of walking, and which thus contains both iter and actus; and fourthly, 'aquaeductus,' the right of conducting water over another man's land. servitudes appurtenant to town estates are rights which are attached to buildings; and they are said to appertain to town estates because all buildings are called 'town estates,' even though they are actually in the country. the following are servitudes of this kind--the obligation of a man to support the weight of his neighbour's house, to allow a beam to be let into his wall, or to receive the rain from his neighbour's roof on to his own either in drops or from a shoot, or from a gutter into his yard; the converse right of exemption from any of these obligations; and the right of preventing a neighbour from raising his buildings, lest thereby one's ancient lights be obstructed. some think that among servitudes appurtenant to country estates ought properly to be reckoned the rights of drawing water, of watering cattle, of pasture, of burning lime, and of digging sand. these servitudes are called rights attached to estates, because without estates they cannot come into existence; for no one can acquire or own a servitude attached to a town or country estate unless he has an estate for it to be attached to. when a landowner wishes to create any of these rights in favour of his neighbour, the proper mode of creation is agreement followed by stipulation. by testament too one can impose on one's heir an obligation not to raise the height of his house so as to obstruct his neighbour's ancient lights, or bind him to allow a neighbour to let a beam into his wall, to receive the rain water from a neighbour's pipe, or allow a neighbour a right of way, of driving cattle or vehicles over his land, or conducting water over it. title iv. of usufruct usufruct is the right of using and taking the fruits of property not one's own, without impairing the substance of that property; for being a right over a corporeal thing, it is necessarily extinguished itself along with the extinction of the latter. usufruct is thus a right detached from the aggregate of rights involved in ownership, and this separation can be effected in very many ways: for instance, if one man gives another a usufruct by legacy, the legatee has the usufruct, while the heir has merely the bare ownership; and, conversely, if a man gives a legacy of an estate, reserving the usufruct, the usufruct belongs to the heir, while only the bare ownership is vested in the legatee. similarly, he can give to one man a legacy of the usufruct, to another one of the estate, subject to the other's usufruct. if it is wished to create a usufruct in favour of another person otherwise than by testament, the proper mode is agreement followed by stipulation. however, lest ownership should be entirely valueless through the permanent separation from it of the usufruct, certain modes have been approved in which usufruct may be extinguished, and thereby revert to the owner. a usufruct may be created not only in land or buildings, but also in slaves, cattle, and other objects generally, except such as are actually consumed by being used, of which a genuine usufruct is impossible by both natural and civil law. among them are wine, oil, grain, clothing, and perhaps we may also say coined money; for a sum of money is in a sense extinguished by changing hands, as it constantly does in simply being used. for convenience sake, however, the senate enacted that a usufruct could be created in such things, provided that due security be given to the heir. thus if a usufruct of money be given by legacy, that money, on being delivered to the legatee, becomes his property, though he has to give security to the heir that he will repay an equivalent sum on his dying or undergoing a loss of status. and all things of this class, when delivered to the legatee, become his property, though they are first appraised, and the legatee then gives security that if he dies or undergoes a loss of status he will ay the value which was put upon them. thus in point of fact the senate did not introduce a usufruct of such things, for that was beyond its power, but established a right analogous to usufruct by requiring security. usufruct determines by the death of the usufructuary, by his undergoing either of the greater kinds of loss of status, by its improper exercise, and by its nonexercise during the time fixed by law; all of which points are settled by our constitution. it is also extinguished when surrendered to the owner by the usufructuary (though transfer to a third person is inoperative); and again, conversely, by the fructuary becoming owner of the thing, this being called consolidation. obviously, a usufruct of a house is extinguished by the house being burnt down, or falling through an earthquake or faulty construction; and in such case a usufruct of the site cannot be claimed. when a usufruct determines, it reverts to and is reunited with the ownership; and from that moment he who before was but bare owner of the thing begins to have full power over it. title v. of use and habitation a bare use, or right of using a thing, is created in the same mode as a usufruct, and the modes in which it may determine are the same as those just described. a use is a less right than a usufruct; for if a man has a bare use of an estate, he is deemed entitled to use the vegetables, fruit, flowers, hay, straw, and wood upon it only so far as his daily needs require: he may remain on the land only so long as he does not inconvenience its owner, or impede those who are engaged in its cultivation; but he cannot let or sell or give away his right to a third person, whereas a usufructuary may. again, a man who has the use of a house is deemed entitled only to live in it himself; he cannot transfer his right to a third person, and it scarcely seems to be agreed that he may take in a guest; but besides himself he may lodge there his wife, children, and freedmen, and other free persons who form as regular a part of his establishment as his slaves. similarly, if a woman has the use of a house, her husband may dwell there with her. when a man has the use of a slave, he has only the right of personally using his labour and services; in no way is he allowed to transfer his right to a third person, and the same applies to the use of beasts of burden. if a legacy be given of the use of a herd or of a flock of sheep, the usuary may not use the milk, lambs, or wool, for these are fruits; but of course he may use the animals for the purpose of manuring his land. if a right of habitation be given to a man by legacy or in some other mode, this seems to be neither a use nor a usufruct, but a distinct and as it were independent right; and by a constitution which we have published in accordance with the opinion of marcellus, and in the interests of utility, we have permitted persons possessed of this right not only to live in the building themselves, but also to let it out to others. what we have here said concerning servitudes, and the rights of usufruct, use, and habitation, will be sufficient; of inheritance and obligations we will treat in their proper places respectively. and having now briefly expounded the modes in which we acquire things by the law of nations, let us turn and see in what modes they are acquired by statute or by civil law. title vi. of usucapion and long possession it was a rule of the civil law that if a man in good faith bought a thing, or received it by way of gift, or on any other lawful ground, from a person who was not its owner, but whom he believed to be such, he should acquire it by usucapion--if a movable, by one year's possession, and by two years' possession if an immovable, though in this case only if it were in italian soil;--the reason of the rule being the inexpediency of allowing ownership to be long unascertained. the ancients thus considered that the periods mentioned were sufficient to enable owners to look after their property; but we have arrived at a better opinion, in order to save people from being overquickly defrauded of their own, and to prevent the benefit of this institution from being confined to only a certain part of the empire. we have consequently published a constitution on the subject, enacting that the period of usucapion for movables shall be three years, and that ownership of immovables shall be acquired by long possession--possession, that is to say, for ten years, if both parties dwell in the same province, and for twenty years if in different provinces; and things may in these modes be acquired in full ownership, provided the possession commences on a lawful ground, not only in italy but in every land subject to our sway. some things, however, not withstanding the good faith of the possessor, and the duration of his possession, cannot be acquired by usucapion; as is the case, for instance, if one possesses a free man, a thing sacred or religious, or a runaway slave. things again of which the owner lost possession by theft, or possession of which was gained by violence, cannot be acquired by usucapion, even by a person who has possessed them in good faith for the specified period: for stolen things are declared incapable of usucapion by the statute of the twelve tables and by the lex atinia, and things taken with violence by the lex iulia et plautia. the statement that things stolen or violently possessed cannot, by statute, be acquired by usucapion, means, not that the thief or violent dispossessor is incapable of usucapion--for these are barred by another reason, namely the fact that their possession is not in good faith; but that even a person who has purchased the thing from them in good faith, or received it on some other lawful ground, is incapable of acquiring by usucapion. consequently, in things movable even a person who possesses in good faith can seldom acquire ownership by usucapion, for he who sells, or on some other ground delivers possession of a thing belonging to another, commits a theft. however, this admits of exception; for if an heir, who believes a thing lent or let to, or deposited with, the person whom he succeeds, to be a portion of the inheritance, sells or gives it by way of dowry to another who receives it in good faith, there is no doubt that the latter can acquire the ownership of it by usucapion; for the thing is here not tainted with the flaw attaching to stolen property, because an heir does not commit a theft who in good faith conveys a thing away believing it to be his own. again, the usufructuary of a female slave, who believes her offspring to be his property, and sells or gives it away, does not commit a theft: for theft implies unlawful intention. there are also other ways in which one man can transfer to another property which is not his own, without committing a theft, and thereby enable the receiver to acquire by usucapion. usucapion of property classed among things immovable is an easier matter; for it may easily happen that a man may, without violence, obtain possession of land which, owing to the absence or negligence of its owner, or to his having died and left no successor, is presently possessed by no one. now this man himself does not possess in good faith, because he knows the land on which he has seized is not his own: but if he delivers it to another who receives it in good faith, the latter can acquire it by long possession, because it has neither been stolen nor violently possessed; for the idea held by some of the ancients, that a piece of land or a place can be stolen, has now been exploded, and imperial constitutions have been enacted in the interests of persons possessing immovables, to the effect that no one ought to be deprived of a thing of which he has had long and unquestioned possession. sometimes indeed even things which have been stolen or violently possessed can be acquired by usucapion, as for instance after they have again come under the power of their real owner: for by this they are relieved from the taint which had attached to them, and so become capable of usucapion. things belonging to our treasury cannot be acquired by usucapion. but there is on record an opinion of papinian, supported by the rescripts of the emperors pius, severus, and antoninus, that if, before the property of a deceased person who has left no heir is reported to the exchequer, some one has bought or received some part thereof, he can acquire it by usucapion. finally, it is to be observed that things are incapable of being acquired through usucapion by a purchaser in good faith, or by one who possesses on some other lawful ground, unless they are free from all flaws which vitiate the usucapion. if there be a mistake as to the ground on which possession is acquired, and which it is wrongly supposed will support usucapion, usucapion cannot take place. thus a man's possession may be founded on a supposed sale or gift, whereas in point of fact there has been no sale or gift at all. long possession which has begun to run in favour of a deceased person continues to run on in favour of his heir or praetorian successor, even though he knows that the land belongs to another person. but if the deceased's possession had not a lawful inception, it is not available to the heir or praetorian successor, although ignorant of this. our constitution has enacted that in usucapion too a similar rule shall be observed, and that the benefit of the possession shall continue in favour of the successor. the emperors severus and antoninus have decided by a rescript that a purchaser too may reckon as his own the time during which his vendor has possessed the thing. finally, it is provided by an edict of the emperor marcus that after an interval of five years a purchaser from the treasury of property belonging to a third person may repel the owner, if sued by him, by an exception. but a constitution issued by zeno of sacred memory has protected persons who acquire things from the treasury by purchase, gift, or other title, affording them complete security from the moment of transfer, and guaranteeing their success in any action relating thereto, whether they be plaintiffs or defendants; while it allows those who claim any action in respect of such property as owners or pledges to sue the imperial treasury at any time within four years from the transaction. a divine constitution which we ourselves have lately issued has extended the operation of zeno's enactment, respecting conveyances by the treasury, to persons who have acquired anything from our palace or that of the empress. title vii. of gifts another mode in which property is acquired is gift. gifts are of two kinds; those made in contemplation of death, and those not so made. gifts of the first kind are those made in view of approaching death, the intention of the giver being that in the event of his decease the thing given should belong to the donee, but that if he should survive or should desire to revoke the gift, or if the donee should die first, the thing should be restored to him. these gifts in contemplation of death now stand on exactly the same footing as legacies; for as in some respects they were more like ordinary gifts, in others more like legacies, the jurists doubted under which of these two classes they should be placed, some being for gift, others for legacy: and consequently we have enacted by constitution that in nearly every respect they shall be treated like legacies, and shall be governed by the rules laid down respecting them in our constitution. in a word, a gift in contemplation of death is where the donor would rather have the thing himself than that the donee should have it, and that the latter should rather have it than his own heir. an illustration may be found in homer, where telemachus makes a gift to piraeus. gifts which are made without contemplation of death, which we call gifts between the living, are of another kind, and have nothing in common with legacies. if the transaction be complete, they cannot be revoked at pleasure; and it is complete when the donor has manifested his intention, whether in writing or not. our constitution has settled that such a manifestation of intention binds the donor to deliver, exactly as in the case of sale; so that even before delivery gifts are completely effectual, and the donor is under a legal obligation to deliver the object. enactments of earlier emperors required that such gifts, if in excess of two hundred solidi, should be officially registered; but our constitution has raised this maximum to five hundred solidi, and dispensed with the necessity of registering gifts of this or of a less amount; indeed it has even specified some gifts which are completely valid, and require no registration, irrespective of their amount. we have devised many other regulations in order to facilitate and secure gifts, all of which may be gathered from the constitutions which we have issued on this topic. it is to be observed, however, that even where gifts have been completely executed we have by our constitution under certain circumstances enabled donors to revoke them, but only on proof of ingratitude on the part of the recipient of the bounty; the aim of this reservation being to protect persons, who have given their property to others, from suffering at the hands of the latter injury or loss in any of the modes detailed in our constitution. there is another specific kind of gift between the living, with which the earlier jurists were quite unacquainted, and which owed its later introduction to more recent emperors. it was called gift before marriage, and was subject to the implied condition that it should not be binding until the marriage had taken place; its name being due to the fact that it was always made before the union of the parties, and could never take place after the marriage had once been celebrated. the first change in this matter was made by our imperial father justin, who, as it had been allowed to increase dowries even after marriage, issued a constitution authorizing the increase of gifts before marriage during the continuance of the marriage tie in cases where an increase had been made to the dowry. the name 'gift before marriage' was, however, still retained, though now inappropriate, because the increase was made to it after the marriage. we, however, in our desire to perfect the law, and to make names suit the things which they are used to denote, have by a constitution permitted such gifts to be first made, and not merely increased, after the celebration of the marriage, and have directed that they shall be called gifts 'on account of' (and not 'before') marriage, thereby assimilating them to dowries; for as dowries are not only increased, but actually constituted, during marriage, so now gifts on account of marriage may be not only made before the union of the parties, but may be first made as well as increased during the continuance of that union. there was formerly too another civil mode of acquisition, namely, by accrual, which operated in the following way: if a person who owned a slave jointly with titius gave him his liberty himself alone by vindication or by testament, his share in the slave was lost, and went to the other joint owner by accrual. but as this rule was very bad as a precedent--for both the slave was cheated of his liberty, and the kinder masters suffered all the loss while the harsher ones reaped all the gain--we have deemed it necessary to suppress a usage which seemed so odious, and have by our constitution provided a merciful remedy, by discovering a means by which the manumitter, the other joint owner, and the liberated slave, may all alike be benefited. freedom, in whose behalf even the ancient legislators clearly established many rules at variance with the general principles of law, will be actually acquired by the slave; the manumitter will have the pleasure of seeing the benefit of his kindness undisturbed; while the other joint owner, by receiving a money equivalent proportionate to his interest, and on the scale which we have fixed, will be indemnified against all loss. title viii. of persons who may, and who may not alienate it sometimes happens that an owner cannot alienate, and that a nonowner can. thus the alienation of dowry land by the husband, without the consent of the wife, is prohibited by the lex iulia, although, since it has been given to him as dowry, he is its owner. we, however, have amended the lex iulia, and thus introduced an improvement; for that statute applied only to land in italy, and though it prohibited a mortgage of the land even with the wife's consent, it forbade it to be alienated only without her concurrence. to correct these two defects we have forbidden mortgages as well as alienations of dowry land even when it is situated in the provinces, so that such land can now be dealt with in neither of these ways, even if the wife concurs, lest the weakness of the female sex should be used as a means to the wasting of their property. conversely, a pledgee, in pursuance of his agreement, may alienate the pledge, though not its owner; this, however, may seem to rest on the assent of the pledgor given at the inception of the contract, in which it was agreed that the pledgee should have a power of sale in default of repayment. but in order that creditors may not be hindered from pursuing their lawful rights, or debtors be deemed to be overlightly deprived of their property, provisions have been inserted in our constitution and a definite procedure established for the sale of pledges, by which the interests of both creditors and debtors have been abundantly guarded. we must next observe that no pupil of either sex can alienate anything without his or her guardian's authority. consequently, if a pupil attempts to lend money without such authority, no property passes, and he does not impose a contractual obligation; hence the money, if it exists, can be recovered by real action. if the money which he attempted to lend has been spent in good faith by the wouldbe borrower, it can be sued for by the personal action called condiction; if it has been fraudulently spent, the pupil can sue by personal action for its production. on the other hand, things can be validly conveyed to pupils of either sex without the guardian's authority; accordingly, if a debtor wishes to pay a pupil, he must obtain the sanction of the guardian to the transaction, else he will not be released. in a constitution which we issued to the advocates of caesarea at the instance of the distinguished tribonian, quaestor of our most sacred palace, it has with the clearest reason been enacted, that the debtor of a pupil may safely pay a guardian or curator by having first obtained permission by the order of a judge, for which no fee is to be payable: and if the judge makes the order, and the debtor in pursuance thereof makes payment, he is completely protected by this form of discharge. supposing, however, that the form of payment be other than that which we have fixed, and that the pupil, though he still has the money in his possession, or has been otherwise enriched by it, attempts to recover the debt by action, he can be repelled by the plea of fraud. if on the other hand he has squandered the money or had it stolen from him, the plea of fraud will not avail the debtor, who will be condemned to pay again, as a penalty for having carelessly paid without the guardian's authority, and not in accordance with our regulation. pupils of either sex cannot validly satisfy a debt without their guardian's authority, because the money paid does not become the creditor's property; the principle being that no pupil is capable of alienation without his guardian's sanction. title ix. of persons through whom we acquire we acquire property not only by our own acts, but also by the acts of persons in our power, of slaves in whom we have a usufruct, and of freemen and slaves belonging to another but whom we possess in good faith. let us now examine these cases in detail. formerly, whatever was received by a child in power of either sex, with the exception of military peculium, was acquired for the parent without any distinction; and the parent was entitled to give away or sell to one child, or to a stranger, what had been acquired through another, or dispose of it in any other way that he pleased. this, however, seemed to us to be a cruel rule, and consequently by a general constitution which we have issued we have improved the children's position, and yet reserved to parents all that was their due. this enacts that whatever a child gains by and through property, of which his father allows him the control, is acquired, according to the old practice, for the father alone; for what unfairness is there in property derived from the father returning to him? but of anything which the child derives from any source other than his father, though his father will have a usufruct therein, the ownership is to belong to the child, that he may not have the mortification of seeing the gains which he has made by his own toil or good fortune transferred to another. we have also made a new rule relating to the right which a father had under earlier constitutions, when he emancipated a child, of retaining absolutely, if he pleased, a third part of such property of the child as he himself had no ownership in, as a kind of consideration for emancipating him. the harsh result of this was that a son was by emancipation deprived of the ownership of a third of his property; and thus the honour which he got by being emancipated and made independent was balanced by the diminution of his fortune. we have therefore enacted that the parent, in such a case, shall no longer retain the ownership of a third of the child's property, but, in lieu thereof, the usufruct of one half; and thus the son will remain absolute owner of the whole of his fortune, while the father will reap a greater benefit than before, by being entitled to the enjoyment of a half instead of a third. again, all rights which your slaves acquire by tradition, stipulation, or any other title, are acquired for you, even though the acquisition be without your knowledge, or even against your will; for a slave, who is in the power of another person, can have nothing of his own. consequently, if he is instituted heir, he must, in order to be able to accept the inheritance, have the command of his master; and if he has that command, and accepts the inheritance, it is acquired for his master exactly as if the latter had himself been instituted heir; and it is precisely the same with a legacy. and not only is ownership acquired for you by those in your power, but also possession; for you are deemed to possess everything of which they have obtained detention, and thus they are to you instruments through whom ownership may be acquired by usucapion or long possession. respecting slaves in whom a person has only a usufruct, the rule is, that what they acquire by means of the property of the usufructuary, or by their own work, is acquired for him; but what they acquire by any other means belongs to their owner, to whom they belong themselves. accordingly, if such a slave is instituted heir, or made legatee or donee, the succession, legacy, or gift is acquired, not for the usufructuary, but for the owner. and a man who in good faith possesses a free man or a slave belonging to another person has the same rights as a usufructuary; what they acquire by any other mode than the two we have mentioned belongs in the one case to the free man, in the other to the slave's real master. after a possessor in good faith has acquired the ownership of a slave by usucapion, everything which the slave acquires belongs to him without distinction; but a fructuary cannot acquire ownership of a slave in this way, because in the first place he does not possess the slave at all, but has merely a right of usufruct in him, and because in the second place he is aware of the existence of another owner. moreover, you can acquire possession as well as ownership through slaves in whom you have a usufruct or whom you possess in good faith, and through free persons whom in good faith you believe to be your slaves, though as regards all these classes we must be understood to speak with strict reference to the distinction drawn above, and to mean only detention which they have obtained by means of your property or their own work. from this it appears that free men not subject to your power, or whom you do not possess in good faith, and other persons' slaves, of whom you are neither usufructuaries nor just possessors, cannot under any circumstances acquire for you; and this is the meaning of the maxim that a man cannot be the means of acquiring anything for one who is a stranger in relation to him. to this maxim there is but one exception--namely, that, as is ruled in a constitution of the emperor severus, a free person, such as a general agent, can acquire possession for you, and that not only when you know, but even when you do not know of the fact of the acquisition: and through this possession ownership can be immediately acquired also, if it was the owner who delivered the thing; and if it was not, it can be acquired ultimately by usucapion or by the plea of long possession. so much at present concerning the modes of acquiring rights over single things: for direct and fiduciary bequests, which are also among such modes, will find a more suitable place in a later portion of our treatise. we proceed therefore to the titles whereby an aggregate of rights is acquired. if you become the successors, civil or praetorian, of a person deceased, or adopt an independent person by adrogation, or become assignees of a deceased's estate in order to secure their liberty to slaves manumitted by his will, the whole estate of those persons is transferred to you in an aggregate mass. let us begin with inheritances, whose mode of devolution is twofold, according as a person dies testate or intestate; and of these two modes we will first treat of acquisition by will. the first point which here calls for exposition is the mode in which wills are made. title x. of the execution of wills the term testament is derived from two words which mean a signifying of intention. lest the antiquities of this branch of law should be entirely forgotten, it should be known that originally two kinds of testaments were in use, one of which our ancestors employed in times of peace and quiet, and which was called the will made in the comitia calata, while the other was resorted to when they were setting out to battle, and was called procinctum. more recently a third kind was introduced, called the will by bronze and balance, because it was made by mancipation, which was a sort of fictitious sale, in the presence of five witnesses and a balance holder, all roman citizens above the age of puberty, together with the person who was called the purchaser of the family. the two first-mentioned kinds of testament, however, went out of use even in ancient times, and even the third, or will by bronze and balance, though it has remained in vogue longer than they, has become partly disused. all these three kinds of will which we have mentioned belonged to the civil law, but later still a fourth form was introduced by the praetor's edict; for the new law of the praetor, or ius honorarium, dispensed with mancipation, and rested content with the seals of seven witnesses, whereas the seals of witnesses were not required by the civil law. when, however, by a gradual process the civil and praetorian laws, partly by usage, partly by definite changes introduced by the constitution, came to be combined into a harmonious whole, it was enacted that a will should be valid which was wholly executed at one time and in the presence of seven witnesses (these two points being required, in a way, by the old civil law), to which the witnesses signed their names--a new formality imposed by imperial legislation--and affixed their seals, as had been required by the praetor's edict. thus the present law of testament seems to be derived from three distinct sources; the witnesses, and the necessity of their all being present continuously through the execution of the will in order that the execution may be valid, coming from the civil law: the signing of the document by the testator and the witnesses being due to imperial constitutions, and the exact number of witnesses, and the sealing of the will by them, to the praetor's edict. an additional requirement imposed by our constitution, in order to secure the genuineness of testaments and prevent forgery, is that the name of the heir shall be written by either the testator or the witnesses, and generally that everything shall be done according to the tenor of that enactment. the witnesses may all seal the testament with the same seal; for, as pomponius remarks, what if the device on all seven seals were the same? it is also lawful for a witness to use a seal belonging to another person. those persons only can be witnesses who are legally capable of witnessing a testament. women, persons below the age of puberty, slaves, lunatics, persons dumb or deaf, and those who have been interdicted from the management of their property, or whom the law declares worthless and unfitted to perform this office, cannot witness a will. in cases where one of the witnesses to a will was thought free at the time of its execution, but was afterwards discovered to be a slave, the emperor hadrian, in his rescript to catonius verus, and afterwards the emperors severus and antoninus declared that of their goodness they would uphold such a will as validly made; for, at the time when it was sealed, this witness was admitted by all to be free, and, as such, had had his civil position called in question by no man. a father and a son in his power, or two brothers who are both in the power of one father, can lawfully witness the same testament, for there can be no harm in several persons of the same family witnessing together the act of a man who is to them a stranger. no one, however, ought to be among the witnesses who is in the testator's power, and if a son in power makes a will of military peculium after his discharge, neither his father nor any one in his father's power is qualified to be a witness; for it is not allowed to support a will by the evidence of persons in the same family with the testator. no will, again, can be witnessed by the person instituted heir, or by any one in his power, or by a father in whose power he is, or by a brother under the power of the same father: for the execution of a will is considered at the present day to be purely and entirely a transaction between the testator and the heir. through mistaken ideas on this matter the whole law of testamentary evidence fell into confusion: for the ancients, though they rejected the evidence of the purchaser of the family and of persons connected with him by the tie of power, allowed a will to be witnessed by the heir and persons similarly connected with him, though it must be admitted that they accompanied this privilege with urgent cautions against its abuse. we have, however, amended this rule, and enacted in the form of law what the ancients expressed in the form only of advice, by assimilating the heir to the old purchaser of the family, and have rightly forbidden the heir, who now represents that character, and all other persons connected with him by the tie referred to, to bear witness in a matter in which, in a sense, they would be witnesses in their own behalf. accordingly, we have not allowed earlier constitutions on this subject to be inserted in our code. legatees, and persons who take a benefit under a will by way of trust, and those connected with them, we have not forbidden to be witnesses, because they are not universal successors of the deceased: indeed, by one of our constitutions we have specially granted this privilege to them, and, a fortiori, to persons in their power, or in whose power they are. it is immaterial whether the will be written on a tablet, paper, parchment, or any other substance: and a man may execute any number of duplicates of his will, for this is sometimes necessary, though in each of them the usual formalities must be observed. for instance, a person setting out upon a voyage may wish to take a statement of his last wishes along with him, and also to leave one at home; and numberless other circumstances which happen to a man, and over which he has no control, will make this desirable. so far of written wills. when, however, one wishes to make a will binding by the civil law, but not in writing, he may summon seven witnesses, and in their presence orally declare his wishes; this, it should be observed, being a form of will which has been declared by constitutions to be perfectly valid by civil law. title xi. of soldiers' wills soldiers, in consideration of their extreme ignorance of law, have been exempted by imperial constitutions from the strict rules for the execution of a testament which have been described. neither the legal number of witnesses, nor the observance of the other rules which have been stated, is necessary to give force to their wills, provided, that is to say, that they are made by them while on actual service; this last qualification being a new though wise one introduced by our constitution. thus, in whatever mode a soldier's last wishes are declared, whether in writing or orally, this is a binding will, by force of his mere intention. at times, however, when they are not employed on actual service, but are living at home or elsewhere, they are not allowed to claim this privilege: they may make a will, even though they be sons in power, in virtue of their service, but they must observe the ordinary rules, and are bound by the forms which we described above as requisite in the execution of wills of civilians. respecting the testaments of soldiers the emperor trajan sent a rescript to statilius severus in the following terms: 'the privilege allowed to soldiers of having their wills upheld, in whatever manner they are made, must be understood to be limited by the necessity of first proving that a will has been made at all; for a will can be made without writing even by civilians. accordingly, with reference to the inheritance which is the subject of the action before you, if it can be shown that the soldier who left it, did in the presence of witnesses, collected expressly for this purpose, declare orally who he wished to be his heir, and on what slaves he wished to confer liberty, it may well be maintained that in this way he made an unwritten testament, and his wishes therein declared ought to be carried out. but if, as is so common in ordinary conversation, he said to some one, i make you my heir, or, i leave you all my property, such expressions cannot be held to amount to a testament, and the interest of the very soldiers, who are privileged in the way described, is the principal ground for rejecting such a precedent. for if it were admitted, it would be easy, after a soldier's death, to procure witnesses to affirm that they had heard him say he left his property to any one they pleased to name, and in this way it would be impossible to discover the true intentions of the deceased.' a soldier too may make a will though dumb and deaf. this privilege, however, which we have said soldiers enjoy, is allowed them by imperial constitutions only while they are engaged on actual service, and in camp life. consequently, if veterans wish to make a will after their discharge, or if soldiers actually serving wish to do this away from camp, they must observe the forms prescribed for all citizens by the general law; and a testament executed in camp without formalities, that is to say, not according to the form prescribed by law, will remain valid only for one year after the testator's discharge. supposing then that the testator died within a year, but that a condition, subject to which the heir was instituted, was not fulfilled within the year, would it be feigned that the testator was a soldier at the date of his decease, and the testament consequently upheld? and this question we answer in the affirmative. if a man, before going on actual service, makes an invalid will, and then during a campaign opens it, and adds some new disposition, or cancels one already made, or in some other way makes it clear that he wishes it to be his testament, it must be pronounced valid, as being, in fact, a new will made by the man as a soldier. finally, if a soldier is adrogated, or, being a son in power, is emancipated, his previously executed will remains good by the fiction of a new expression of his wishes as a soldier, and is not deemed to be avoided by his loss of status. it is, however, to be observed that earlier statutes and imperial constitutions allowed to children in power in certain cases a civil peculium after the analogy of the military peculium, which for that reason was called quasimilitary, and of which some of them were permitted to dispose by will even while under power. by an extension of this principle our constitution has allowed all persons who have a peculium of this special kind to dispose of it by will, though subject to the ordinary forms of law. by a perusal of this constitution the whole law relating to this privilege may be ascertained. title xii. of persons incapable of making wills certain persons are incapable of making a lawful will. for instance, those in the power of others are so absolutely incapable that they cannot make a testament even with the permission of their parents, with the exception of those whom we have enumerated, and particularly of children in power who are soldiers, and who are permitted by imperial constitution to dispose by will of all they may acquire while on actual service. this was allowed at first only to soldiers on active service, by the authority of the emperors augustus and nerva, and of the illustrious emperor trajan; afterwards, it was extended by an enactment of the emperor hadrian to veterans, that is, soldiers who had received their discharge. accordingly, if a son in power makes a will of his military peculium, it will belong to the person whom he institutes as heir: but if he dies intestate, leaving no children or brothers surviving him, it will go to the parent in whose power he is, according to the ordinary rule. from this it can be understood that a parent has no power to deprive a son in his power of what he has acquired on service, nor can the parent's creditors sell or otherwise touch it; and when the parent dies it is not shared between the soldier's son and his brothers, but belongs to him alone, although by the civil law the peculium of a person in power is always reckoned as part of the property of the parent, exactly as that of a slave is deemed part of the property of his master, except of course such property of the son as by imperial constitutions, and especially our own, the parent is unable to acquire in absolute ownership. consequently, if a son in power, not having a military or quasimilitary peculium, makes a will, it is invalid, even though he is released from power before his decease. again, a person under the age of puberty is incapable of making a will, because he has no judgement, and so too is a lunatic, because he has lost his reason; and it is immaterial that the one reaches the age of puberty, and the other recovers his faculties, before his decease. if, however, a lunatic makes a will during a lucid interval, the will is deemed valid, and one is certainly valid which he made before he lost his reason: for subsequent insanity never avoids a duly executed testament or any other disposition validly made. so too a spendthrift, who is interdicted from the management of his own affairs, is incapable of making a valid will, though one made by him before being so interdicted holds good. the deaf, again, and the dumb cannot always make a will, though here we are speaking not of persons merely hard of hearing, but of total deafness, and similarly by a dumb person is meant one totally dumb, and not one who merely speaks with difficulty; for it often happens that even men of culture and learning by some cause or other lose the faculties of speech and hearing. hence relief has been afforded them by our constitution, which enables them, in certain cases and in certain modes therein specified, to make a will and other lawful dispositions. if a man, after making his will, becomes deaf or dumb through ill health or any other cause, it remains valid notwithstanding. a blind man cannot make a will, except by observing the forms introduced by a law of our imperial father justin. a will made by a prisoner while in captivity with the enemy is invalid, even though he subsequently returns. one made, however, while he was in his own state is valid, if he returns, by the law of postliminium; if he dies in captivity it is valid by the lex cornelia. title xiii. of the disinherison of children the law, however, is not completely satisfied by the observance of the rules hereinbefore explained. a testator who has a son in his power must take care either to institute him heir, or to specially disinherit him, for passing him over in silence avoids the will; and this rule is so strict, that even if the son die in the lifetime of the father no heir can take under the will, because of its original nullity. as regards daughters and other descendants of either sex by the male line, the ancients did not observe this rule in all its strictness; for if these persons were neither instituted nor disinherited, the will was not avoided, but they were entitled to come in with the instituted heirs, and to take a certain portion of the inheritance. and these persons the ascendant was not obliged to specially disinherit; he could disinherit them collectively by a general clause. special disinherison may be expressed in these terms--'be titius my son disinherited,' or in these, 'be my son disinherited,' without inserting the name, supposing there is no other son. children born after the making of the will must also be either instituted heirs or disinherited, and in this respect are similarly privileged, that if a son or any other family heir, male or female, born after the making of the will, be passed over in silence, the will, though originally valid, is invalidated by the subsequent birth of the child, and so becomes completely void. consequently, if the woman from whom a child was expected to have an abortive delivery, there is nothing to prevent the instituted heirs from taking the inheritance. it was immaterial whether the female family heirs born after the making of the will were disinherited specially or by a general clause, but if the latter mode be adopted, some legacy must be left them in order that they may not seem to have been passed over merely through inadvertence: but male family heirs born after the making of the will, sons and other lineal descendants, are held not to be properly disinherited unless they are disinherited specially, thus: 'be any son that shall be born to me disinherited.' with children born after the making of the will are classed children who succeed to the place of a family heir, and who thus, by an event analogous to subsequent birth, become family heirs to an ancestor. for instance, if a testator have a son, and by him a grandson or granddaughter in his power, the son alone, being nearer in degree, has the right of a family heir, although the grandchildren are in the testator's power equally with him. but if the son die in the testator's lifetime, or is in some other way released from his power, the grandson and granddaughter succeed to his place, and thus, by a kind of subsequent birth, acquire the rights of family heirs. to prevent this subsequent avoidance of one's will, grandchildren by a son must be either instituted heirs or disinherited, exactly as, to secure the original validity of a testament, a son must be either instituted or specially disinherited; for if the son die in the testator's lifetime, the grandson and granddaughter take his place, and avoid the will just as if they were children born after its execution. and this disinherison was first allowed by the lex iunia vallaea, which explains the form which is to be used, and which resembles that employed in disinheriting family heirs born after the making of a will. it is not necessary, by the civil law, to either institute or disinherit emancipated children, because they are not family heirs. but the praetor requires all, females as well as males, unless instituted, to be disinherited, males specially, females collectively; and if they are neither appointed heirs nor disinherited as described, the praetor promises them possession of goods against the will. adopted children, so long as they are in the power of their adoptive father, are in precisely the same legal position as children born in lawful wedlock; consequently they must be either instituted or disinherited according to the rules stated for the disinherison of natural children. when, however, they have been emancipated by their adoptive father, they are no longer regarded as his children either by the civil law or by the praetor's edict. conversely, in relation to their natural father, so long as they remain in the adoptive family they are strangers, so that he need neither institute nor disinherit them: but when emancipated by their adoptive father, they have the same rights in the succession to their natural father as they would have had if it had been he by whom they were emancipated. such was the law introduced by our predecessors. deeming, however, that between the sexes, to each of which nature assigns an equal share in perpetuating the race of man, there is in this matter no real ground of distinction, and marking that, by the ancient statute of the twelve tables, all were called equally to the succession on the death of their ancestor intestate (which precedent the praetors also seem to have subsequently followed), we have by our constitution introduced a simple system of the same kind, applying uniformly to sons, daughters, and other descendants by the male line, whether born before or after the making of the will. this requires that all children, whether family heirs or emancipated, shall be specially disinherited, and declares that their pretermission shall have the effect of avoiding the will of their parent, and depriving the instituted heirs of the inheritance, no less than the pretermission of children who are family heirs or who have been emancipated, whether already born, or born after, though conceived before the making of the will. in respect of adoptive children we have introduced a distinction, which is explained in our constitution on adoptions. if a soldier engaged on actual service makes a testament without specially disinheriting his children, whether born before or after the making of the will, but simply passing over them in silence, though he knows that he has children, it is provided by imperial constitutions that his silent pretermission of them shall be equivalent to special disinherison. a mother or maternal grandfather is not bound to institute her or his children or grandchildren; they may simply omit them, for silence on the part of a mother, or of a maternal grandfather or other ascendant, has the same effect as actual disinherison by a father. for neither by the civil law, nor by that part of the praetor's edict in which he promises children who are passed over possession of goods against the will, is a mother obliged to disinherit her son or daughter if she does not institute them heirs, or a maternal grandfather to be equally precise with reference to grandchildren by a daughter: though such children and grandchildren, if omitted, have another remedy, which will shortly be explained. title xiv. of the institution of the heir a man may institute as his heirs either free men or slaves, and either his own slaves or those of another man. if he wished to institute his own slave it was formerly necessary, according to the more common opinion, that he should expressly give him his liberty in the will: but now it is lawful, by our constitution, to institute one's own slave without this express manumission--a change not due to any spirit of innovation, but to a sense of equity, and one whose principle was approved by atilicinus, as it is stated by seius in his books on masurius sabinus and on plautius. among a testator's own slaves is to be reckoned one of whom he is bare owner, the usufruct being vested in some other person. there is, however, one case in which the institution of a slave by his mistress is void, even though freedom be given him in the will, as is provided by a constitution of the emperors severus and antoninus in these terms: 'reason demands that no slave, accused of criminal intercourse with his mistress, shall be capable of being manumitted, before his sentence is pronounced, by the will of the woman who is accused of participating in his guilt: accordingly if he be instituted heir by that mistress, the institution is void.' among 'other persons' slaves' is reckoned one in whom the testator has a usufruct. if a slave is instituted heir by his own master, and continues in that condition until his master's decease, he becomes by the will both free, and necessary heir. but if the testator himself manumits him in his lifetime, he may use his own discretion about acceptance; for he is not a necessary heir, because, though he is named heir to the testament, it was not by that testament that he became free. if he has been alienated, he must have the order of his new master to accept, and then his master becomes heir through him, while he personally becomes neither heir nor free, even though his freedom was expressly given him in the testament, because by alienating him his former master is presumed to have renounced the intention of enfranchising him. when another person's slave is instituted heir, if he continues in the same condition he must have the order of his master to accept; if alienated by him in the testator's lifetime, or after the testator's death but before acceptance, he must have the order of the alienee to accept; finally, if manumitted in the testator's lifetime, or after the testator's death but before acceptance, he may accept or not at his own discretion. a slave who does not belong to the testator may be instituted heir even after his master's decease, because slaves who belong to an inheritance are capable of being instituted or made legatees; for an inheritance not yet accepted represents not the future heir but the person deceased. similarly, the slave of a child conceived but not yet born may be instituted heir. if a slave belonging to two or more joint owners, both or all of whom are legally capable of being made heirs or legatees, is instituted heir by a stranger, he acquires the inheritance for each and all of the joint owners by whose orders he accepts it in proportion to the respective shares in which they own him. a testator may institute either a single heir, or as many as he pleases. an inheritance is usually divided into twelve ounces, and is denoted in the aggregate by the term as, and each fraction of this aggregate, ranging from the ounce up to the as or pound, has its specific name, as follows: sextans ( / ), quadrans ( / ), triens ( / ), quincunx ( / ), semis ( / ), septunx ( / ), bes ( / ), dodrans ( / ), dextans ( / ), deunx ( / ), and as it is not necessary, however, that there should always be twelve ounces, for for the purposes of testamentary distribution an as may consist of as many ounces as the testator pleases; for instance, if a testator institutes only a single heir, but declares that he is to be heir ex semisse, or to one half of the inheritance, this half will really be the whole, for no one can die partly testate and partly intestate, except soldiers, in the carrying out of whose wills the intention is the only thing regarded. conversely, a testator may divide his inheritance into as large a number of ounces as he pleases. if more heirs than one are instituted, it is unnecessary for the testator to assign a specific share in the inheritance to each, unless he intends that they shall not take in equal portions; for it is obvious that if no shares are specified they divide the inheritance equally between them. supposing, however, that specific shares are assigned to all the instituted heirs except one, who is left without any express share at all, this last heir will be entitled to any fraction of the as which has not been disposed of; and if there are two or more heirs to whom no specific shares have been assigned, they will divide this unassigned fraction equally between them. finally, if the whole as has been assigned in specific shares to some of the heirs, the one or more who have no specific shares take half of the inheritance, while the other half is divided among the rest according to the shares assigned to them; and it is immaterial whether the heir who has no specified share come first or last in the institution, or occupies some intermediate place; for such share is presumed to be given to him as is not in some other way disposed of. let us now see how the law stands if some part remains undisposed of, and yet each heir has his share assigned to him--if, for instance there are three heirs instituted, and each is assigned a quarter of the inheritance. it is evident that in this case the part undisposed of will go to them in proportion to the share each has assigned to him by the will, and it will be exactly as if they had each been originally instituted to a third. conversely, if each heir is given so large a fraction that the as will be exceeded, each must suffer a proportionate abatement; thus if four heirs are instituted, and to each is assigned a third of the inheritance, it will be the same as if each had been originally instituted to a quarter. if more than twelve ounces are distributed among some of the heirs only, one being left without a specific share, he will have what is wanting to complete the second as; and the same will be done if more than twenty-four ounces are distributed, leaving him shareless; but all these ideal sums are afterwards reduced to the single as, whatever be the number of ounces they comprise. the institution of the heir may be either absolute or conditional, but no heir can be instituted from, or up to, some definite date, as, for instance, in the following form--'be so and so my heir after five years from my decease,' or 'after the calends of such a month,' or 'up to and until such calends'; for a time limitation in a will is considered a superfluity, and an heir instituted subject to such a time limitation is treated as heir absolutely. if the institution of an heir, a legacy, a fiduciary bequest, or a testamentary manumission is made to depend on an impossible condition, the condition is deemed unwritten, and the disposition absolute. if an institution is made to depend on two or more conditions, conjunctively expressed,--as, for instance, 'if this and that shall be done'--all the conditions must be satisfied: if they are expressed in the alternative, or disjunctively--as 'if this or that shall be done'--it is enough if one of them alone is satisfied. a testator may institute as his heir a person whom he has never seen, for instance, nephews who have been born abroad and are unknown to him: for want of this knowledge does not invalidate the institution. title xv. of ordinary substitution a testator may institute his heirs, if he pleases, in two or more degrees, as, for instance, in the following form: 'if a shall not be my heir, then let b be my heir'; and in this way he can make as many substitutions as he likes, naming in the last place one of his own slaves as necessary heir, in default of all others taking. several may be substituted in place of one, or one in place of several, or to each heir may be substituted a new and distinct person, or, finally, the instituted heirs may be substituted reciprocally in place of one another. if heirs who are instituted in equal shares are reciprocally substituted to one another, and the shares which they are to have in the substitution are not specified, it is presumed (as was settled by a rescript of the emperor pius) that the testator intended them to take the same shares in the substitution as they took directly under the will. if a third person is substituted to one heir who himself is substituted to his coheir, the emperors severus and antoninus decided by rescript that this third person is entitled to the shares of both without distinction. if a testator institutes another man's slave, supposing him to be an independent person, and substitutes maevius in his place to meet the case of his not taking the inheritance, then, if the slave accepts by the order of his master, maevius is entitled to a half. for, when applied to a person whom the testator knows to be in the power of another, the words 'if he shall not be my heir' are taken to mean 'if he shall neither be heir himself nor cause another to be heir'; but when applied to a person whom the testator supposes to be independent, they mean 'if he shall not acquire the inheritance either for himself, or for that person to whose power he shall subsequently become subject,' and this was decided by tiberius caesar in the case of his slave parthenius. title xvi. of pupillary substitution to children below the age of puberty and in the power of the testator, not only can such a substitute as we have described be appointed, that is, one who shall take on their failing to inherit, but also one who shall be their heir if, after inheriting, they die within the age of puberty; and this may be done in the following terms, 'be my son titius my heir; and if he does not become my heir, or, after becoming my heir, die before becoming his own master (that is, before reaching puberty), then be seius my heir.' in which case, if the son fails to inherit, the substitute is the heir of the testator; but if the son, after inheriting, dies within the age of puberty, he is the heir of the son. for it is a rule of customary law, that when our children are too young to make wills for themselves, their parents may make them for them. the reason of this rule has induced us to assert in our code a constitution, providing that if a testator has children, grandchildren, or greatgrandchildren who are lunatics or idiots, he may, after the analogy of pupillary substitution, substitute certain definite persons to them, whatever their sex or the nearness of their relationship to him, and even though they have reached the age of puberty; provided always that on their recovering their faculties such substitution shall at once become void, exactly as pupillary substitution proper ceases to have any operation after the pupil has reached puberty. thus, in pupillary substitution effected in the form described, there are, so to speak, two wills, the father's and the son's, just as if the son had personally instituted an heir to himself; or rather, there is one will dealing with two distinct matters, that is, with two distinct inheritances. if a testator be apprehensive that, after his own death, his son, while still a pupil, may be exposed to the danger of foul play, because another person is openly substituted to him, he ought to make the ordinary substitution openly, and in the earlier part of the testament, and write the other substitution, wherein a man is named heir on the succession and death of the pupil, separately on the lower part of the will; and this lower part he should tie with a separate cord and fasten with a separate seal, and direct in the earlier part of the will that it shall not be opened in the lifetime of the son before he attains the age of puberty. of course a substitution to a son under the age of puberty is none the less valid because it is a integral part of the very will in which the testator has instituted him his heir, though such an open substitution may expose the pupil to the danger of foul play. not only when we leave our inheritance to children under the age of puberty can we make such a substitution, that if they accept the inheritance, and then die under that age, the substitute is their heir, but we can do it when we disinherit them, so that whatever the pupil acquires by way of inheritance, legacy or gift from his relatives or friends, will pass to the substitute. what has been said of substitution to children below the age of puberty, whether instituted or disinherited, is true also of substitution to afterborn children. in no case, however, may a man make a will for his children unless he makes one also for himself; for the will of the pupil is but a complementary part of the father's own testament; accordingly, if the latter is void, the former will be void also. substitution may be made either to each child separately, or only to such one of them as shall last die under the age of puberty. the first is the proper plan, if the testator's intention is that none of them shall die intestate: the second, if he wishes that, as among them, the order of succession prescribed by the twelve tables shall be strictly preserved. the person substituted in the place of a child under the age of puberty may be either named individually--for instance, titius--or generally prescribed, as by the words 'whoever shall be my heir'; in which latter case, on the child dying under the age of puberty, those are called to the inheritance by the substitution who have been instituted heirs and have accepted, their shares in the substitution being proportionate to the shares in which they succeeded the father. this kind of substitution may be made to males up to the age of fourteen, and to females up to that of twelve years; when this age is once passed, the substitution becomes void. to a stranger, or a child above the age of puberty whom a man has instituted heir, he cannot appoint a substitute to succeed him if he take and die within a certain time: he has only the power to bind him by a trust to convey the inheritance to another either wholly or in part; the law relating to which subject will be explained in its proper place. title xvii. of the modes in which wills become void a duly executed testament remains valid until either revoked or rescinded. a will is revoked when, though the civil condition of the testator remains unaltered, the legal force of the will itself is destroyed, as happens when, after making his will, a man adopts as his son either an independent person, in which case the adoption is effected by imperial decree, or a person already in power, when it is done through the agency of the praetor according to our constitution. in both these cases the will is revoked, precisely as it would be by the subsequent birth of a family heir. again, a subsequent will duly executed is a revocation of a prior will, and it makes no difference whether an heir ever actually takes under it or not; the only question is whether one might conceivably have done so. accordingly, whether the person instituted declines to be heir, or dies in the lifetime of the testator, or after his death but before accepting the inheritance, or is excluded by failure of the condition under which he was instituted--in all the cases the testator dies intestate; for the earlier will is revoked by the later one, and the later one is inoperative, as no heir takes under it. if, after duly making one will, a man executes a second one which is equally valid, the emperors severus and antoninus decided by rescript that the first is revoked by the second, even though the heir instituted in the second is instituted to certain things only. the terms of this enactment we have ordered to be inserted here, because it contains another provision. 'the emperors severus and antoninus to cocceius campanus. a second will, although the heir named therein be instituted to certain things only, is just as valid as if no mention of the things had been made: but the heir is bound to content himself with the things given him, or with such further portion of the inheritance as will make up the fourth part to which he is entitled under the lex falcidia, and (subject thereto) to transfer the inheritance to the persons instituted in the earlier will: for the words inserted in the later will undoubtedly contain the expression of a wish that the earlier one shall remain valid.' this accordingly is a mode in which a testament may be revoked. there is another event by which a will duly executed may be invalidated, namely, the testator's undergoing a loss of status: how this may happen was explained in the preceding book. in this case the will may be said to be rescinded, though both those that are revoked, and those that are not duly executed, may be said to become or be rescinded; and similarly too those which are duly executed but subsequently rescinded by loss of status may be said to be revoked. however, as it is convenient that different grounds of invalidity should have different names to distinguish them, we say that some wills are unduly executed from the commencement, while others which are duly executed are either revoked or rescinded. wills, however, which, though duly executed, are subsequently rescinded by the testator's undergoing loss of status are not altogether inoperative: for if the seals of seven witnesses are attached, the instituted heir is entitled to demand possession in accordance with the will, if only the testator were a citizen of rome and independent at the time of his decease; but if the cause of the rescission was the testator's subsequent loss of citizenship or of freedom, or his adoption, and he dies an alien, or slave, or subject to his adoptive father's power, the instituted heir is barred from demanding possession in accordance with the will. the mere desire of a testator that a will which he has executed shall no longer have any validity is not, by itself, sufficient to avoid it; so that, even if he begins to make a later will, which he does not complete because he either dies first, or changes his mind, the first will remains good; it being provided in an address of the emperor pertinax to the senate that one testament which is duly executed is not revoked by a later one which is not duly and completely executed; for an incomplete will is undoubtedly null. in the same address the emperor declared that he would accept no inheritance to which he was made heir on account of a suit between the testator and some third person, nor would he uphold a will in which he was instituted in order to screen some legal defect in its execution, or accept an inheritance to which he was instituted merely by word of mouth, or take any testamentary benefit under a document defective in point of law. and there are numerous rescripts of the emperors severus and antoninus to the same purpose: 'for though,' they say, 'the laws do not bind us, yet we live in obedience to them.' title xviii. of an unduteous will inasmuch as the disinherison or omission by parents of their children has generally no good reason, those children who complain that they have been wrongfully disinherited or passed over have been allowed to bring an action impeaching the will as unduteous, under the pretext that the testator was of unsound mind at the time of its execution. this does not mean that he was really insane, but that the will, though legally executed, bears no mark of that affection to which a child is entitled from a parent: for if a testator is really insane, his will is void. parents may impeach the wills of their children as unduteous, as well as children those of their parents. brothers and sisters of the testator are by imperial constitutions preferred to infamous persons who are instituted to their exclusion, so that it is in these cases only that they can bring this action. persons related to the testator in a further degree than as brothers or sisters can in no case bring the action, or at any rate succeed in it when brought. children fully adopted, in accordance with the distinction drawn in our constitution, can bring this action as well as natural children, but neither can do so unless there is no other mode in which they can obtain the property of the deceased: for those who can obtain the inheritance wholly or in part by any other title are barred from attacking a will as unduteous. afterborn children too can employ this remedy, if they can by no other means recover the inheritance. that they may bring the action must be understood to mean, that they may bring it only if absolutely nothing has been left them by the testator in his will: a restriction introduced by our constitution out of respect for a father's natural rights. if, however, a part of the inheritance, however small, or even a single thing is left them, the will cannot be impeached, but the heir must, if necessary, make up what is given them to a fourth of what they would have taken had the testator died intestate, even though the will does not direct that this fourth is to be made up by the assessment of an honest and reliable man. if a guardian accepts, under his own father's will, a legacy on behalf of the pupil under his charge, the father having left nothing to him personally, he is in no way debarred from impeaching his father's will as unduteous on his own account. on the other hand, if he impeaches the will of his pupil's father on the pupil's behalf, because nothing has been left to the latter, and is defeated in the action, he does not lose a legacy given in the same will to himself personally. accordingly, that a person may be barred from the action impeaching the will, it is requisite that he should have a fourth of what he would have taken on intestacy, either as heir, legatee direct or fiduciary, donee in contemplation of death, by gift from the testator in his lifetime (though gift of this latter kind bars the action only if made under any of the circumstances mentioned in our constitution) or in any of the other modes stated in the imperial legislation. in what we have said of the fourth we must be understood to mean that whether there be one person only, or more than one, who can impeach the will as unduteous, onefourth of the whole inheritance may be given them, to be divided among them all proportionately, that is to say, to each person a fourth of what he would have had if the testator had died intestate. title xix. of the kinds and differences between heirs heirs are of three kinds, that is to say, they are either necessary, family heirs and necessary, or external. a necessary heir is a slave of the testator, whom he institutes as heir: and he is so named because, willing or unwilling, and without any alternative, he becomes free and necessary heir immediately on the testator's decease. for when a man's affairs are embarrassed, it is common for one of his slaves to be instituted in his will, either in the first place, or as a substitute in the second or any later place, so that, if the creditors are not paid in full, the heir may be insolvent rather than the testator, and his property, rather than the testator's, may be sold by the creditors and divided among them. to balance this disadvantage he has this advantage, that his acquisitions after the testator's decease are for his own sole benefit; and although the estate of the deceased is insufficient to pay the creditors in full, the heir's subsequent acquisitions are never on that account liable to a second sale. heirs who are both family heirs and necessary are such as a son or a daughter, a grandchild by a son, and further similar lineal descendants, provided that they are in the ancestor's power at the time of his decease. to make a grandson or granddaughter a family heir it is, however, not sufficient for them to be in the grandfather's power at the moment of his decease: it is further requisite that their own father shall, in the lifetime of the grandfather, have ceased to be the family heir himself, whether by death or by any other mode of release from power: for by this event the grandson and granddaughter succeed to the place of their father. they are called family heirs, because they are heirs of the house, and even in the lifetime of the parent are to a certain extent deemed owners of the inheritance: wherefore in intestacy the first right of succession belongs to the children. they are called necessary heirs because they have no alternative, but, willing or unwilling, both where there is a will and where there is not, they become heirs. the praetor, however, permits them, if they wish, to abstain from the inheritance, and leave the parent to become insolvent rather than themselves. those who are not subject to the testator's power are called external heirs. thus children of ours who are not in our power, if instituted heirs by us, are deemed external heirs; and children instituted by their mother belong to this class, because women never have children in their power. slaves instituted heirs by their masters, and manumitted subsequently to the execution of the will, belong to the same class. it is necessary that external heirs should have testamentary capacity, whether it is an independent person, or some one in his power, who is instituted: and this capacity is required at two times; at the same time of the making of the will, when, without it, the institution would be void; and at the same time of the testator's decease, when, without it, the institution would have no effect. moreover, the instituted heir ought to have this capacity also at the time when he accepts the inheritance, whether he is instituted absolutely or subject to a condition; and indeed it is especially at this time that his capacity to take ought to be looked to. if, however, the instituted heir undergoes a loss of status in the interval between the making of the will and the testator's decease, or the satisfaction of the condition subject to which he was instituted, he is not thereby prejudiced: for, as we said, there are only three points of time which have to be regarded. testamentary capacity thus does not mean merely capacity to make a will; it also means capacity to take for oneself, or for the father or master in whose power one is, under the will of another person: and this latter kind of testamentary capacity is quite independent of the capacity to make a will oneself. accordingly, even lunatics, deaf persons, afterborn children, infants, children in power, and other persons' slaves are said to have testamentary capacity; for though they cannot make a valid will, they can acquire for themselves or for another under a will made by someone else. external heirs have the privilege of deliberating whether they will accept or disclaim an inheritance. but if a person who is entitled to disclaim interferes with the inheritance, or if one who has the privilege of deliberation accepts it, he no longer has the power of relinquishing it, unless he is a minor under the age of twentyfive years, for minors obtain relief from the praetor when they incautiously accept a disadvantageous inheritance, as well as when they take any other injudicious step. it is, however, to be observed that the emperor hadrian once relieved even a person who had attained his majority, when, after his accepting the inheritance, a great debt, unknown at the time of acceptance, had come to light. this was but the bestowal of an especial favour on a single individual; the emperor gordian subsequently extended the privilege, but only to soldiers, to whom it was granted as a class. we, however, in our benevolence have placed this benefit within the reach of all our subjects, and drafted a constitution as just as it is splendid, under which, if heirs will but observe its terms, they can accept an inheritance without being liable to creditors and legatees beyond the value of the property. thus so far as their liability is concerned there is no need for them to deliberate on acceptance, unless they fail to observe the procedure of our constitution, and prefer deliberation, by which they will remain liable to all the risks of acceptance under the older law. an external heir, whether his right accrue to him under a will or under the civil law of intestate succession, can take the inheritance either by acting as heir, or by the mere intention to accept. by acting as heir is mean, for instance, using things belonging to the inheritance as one's own, or selling them, or cultivating or giving leases of the deceased's estates, provided only one expresses in any way whatsoever, by deed or word, one's intention to accept the inheritance, so long as one knows that the person with whose property one is thus dealing has died testate or intestate, and that one is that person's heir. to act as heir, in fact, is to act as owner, and the ancients often used the term 'heir' as equivalent to the term 'owner.' and just as the mere intention to accept makes an external heir heir, so too the mere determination not to accept bars him from the inheritance. nothing prevents a person who is born deaf or dumb, or who becomes so after birth, from acting as heir and thus acquiring the inheritance, provided only he knows what he is doing. title xx. of legacies let us now examine legacies:--a kind of title which seems foreign to the matter at hand, for we are expounding titles whereby aggregates of rights are acquired; but as we have treated in full of wills and heirs appointed by will, it was natural in close connexion therewith to consider this mode of acquisition. now a legacy is a kind of gift left by a person deceased; and formerly they were of four kinds, namely, legacy by vindication, by condemnation, by permission, and by preception, to each of which a definite form of words was appropriated by which it was known, and which served to distinguish it from legacies of the other kinds. solemn forms of words of this sort, however, have been altogether abolished by imperial constitutions; and we, desiring to give greater effect to the wishes of deceased persons, and to interpret their expressions with reference rather to those wishes than to their strict literal meaning, have issued a constitution, composed after great reflection, enacting that in future there shall be but one kind of legacy, and that, whatever be the terms in which the bequest is couched, the legatee may sue for it no less by real or hypothecary than by personal action. how carefully and wisely this constitution is worded may be ascertained by a perusal of its contents. we have determined, however, to go even beyond this enactment; for, observing that the ancients subjected legacies to strict rules, while the rules which they applied to fiduciary bequests, as springing more directly from the deceased person's wishes, were more liberal, we have deemed it necessary to assimilate the former completely to the latter, so that any future features in which legacies are inferior to fiduciary bequests may be supplied to them from the latter, and the latter themselves may in future possess any superiority which has hitherto been enjoyed by legacies only. in order, however, to avoid perplexing students in their first essays in the law by discussing these two forms of bequests together, we have thought it worth while to treat them separately, dealing first with legacies, and then with fiduciary bequests, so that the reader, having first learnt their respective natures in a separate treatment, may, when his legal education is more advanced, be able easily to comprehend their treatment in combination. a legacy may be given not only of things belonging to the testator or heir, but also of things belonging to a third person, the heir being bound by the will to buy and deliver them to the legatee, or to give him their value if the owner is unwilling to sell them. if the thing given be one of those of which private ownership is impossible, such, for instance, as the campus martius, a basilica, a church, or a thing devoted to public use, not even its value can be claimed, for the legacy is void. in saying that a thing belonging to a third person may be given as a legacy we must be understood to mean that this may be done if the deceased knew that it belonged to a third person, and not if he was ignorant of this: for perhaps he would never have given the legacy if he had known that the thing belonged neither to him nor to the heir, and there is a rescript of the emperor pius to this effect. it is also the better opinion that the plaintiff, that is the legatee, must prove that the deceased knew he was giving as a legacy a thing which was not his own, rather than that the heir must prove the contradictory: for the general rule of law is that the burden of proof lies on the plaintiff. if the thing which a testator bequests is in pledge to a creditor, the heir is obliged to redeem it, subject to the same distinction as has been drawn with reference to a legacy of a thing not belonging to the testator; that is to say, the heir is bound to redeem only if the deceased knew the thing to be in pledge: and the emperors severus and antoninus have decided this by rescript. if, however, the deceased expresses his intention that the legatee should redeem the thing himself, the heir is under no obligation to do it for him. if a legacy is given of a thing belonging to another person, and the legatee becomes its owner during the testator's lifetime by purchase, he can obtain its value from the heir by action on the will: but if he gives no consideration for it, that is to say, gets it by way of gift or by some similar title, he cannot sue; for it is settled law that where a man has already got a thing, giving no consideration in return, he cannot get its value by a second title of the same kind. accordingly, if a man is entitled to claim a thing under each of two distinct wills, it is material whether he gets the thing, or merely its value, under the earlier one: for if he gets the thing itself, he cannot sue under the second will, because he already has the thing without giving any consideration, whereas he has a good right of action if he has merely got its value. a thing which does not yet exist, but will exist, may be validly bequeathed:--for instance, the produce of such and such land, or the child of such and such female slave. if the same thing is given as a legacy to two persons, whether jointly or severally, and both claim it, each is entitled to only a half; if one of them does not claim it, because either he does not care for it, or has died in the testator's lifetime, or for some other reason, the whole goes to his colegatee. a joint legacy is given in such words as the following: 'i give and bequeath my slave stichus to titius and seius': a several legacy thus, 'i give and bequeath my slave stichus to titius: i give and bequeath stichus to seius': and even if the testator says 'the same slave stichus' the legacy is still a several one. if land be bequeathed which belongs to some one other than the testator, and the intended legatee, after purchasing the bare ownership therein, obtains the usufruct without consideration, and then sues under the will, julian says that this action for the land is well grounded, because in a real action for land a usufruct is regarded merely as a servitude; but it is part of the duty of the judge to deduct the value of the usufruct from the sum which he directs to be paid as the value of the land. a legacy by which something already belonging to the legatee is given him is void, for what is his own already cannot become more his own than it is: and even though he alienates it before the testator's death, neither it nor its value can be claimed. if a testator bequeaths something belonging to him, but which he thought belonged to another person, the legacy is good, for its validity depends not on what he thought, but on the real facts of the case: and it is clearly good if he thought it already belonged to the legatee, because his expressed wish can thus be carried out. if, after making his will, a testator alienates property which he has therein given away as a legacy, celsus is of opinion that the legatee may still claim it unless the testator's intention was thereby to revoke the bequest, and there is a rescript of the emperors severus and antoninus to this effect, as well as another which decides that if, after making his will, a testator pledges land which he had therein given as a legacy, the part which has not been alienated can in any case be claimed, and the alienated part as well if the alienator's intention was not to revoke the legacy. if a man bequeaths to his debtor a discharge from his debt, the legacy is good, and the testator's heir cannot sue either the debtor himself, or his heir, or any one who occupies the position of heir to him, and the debtor can even compel the testator's heir to formally release him. moreover, a testator can also forbid his heir to claim payment of a debt before a certain time has elapsed. contrariwise, if a debtor leaves his creditor a legacy of what he owes him, the legacy is void, if it includes no more than the debt, for the creditor is thus in no way benefited; but if the debtor unconditionally bequeaths a sum of money which the creditor cannot claim until a definite date has arrived or a condition has been satisfied, the legacy is good, because it confers on the creditor a right to earlier payment. and, even if the day arrives, or the condition is satisfied, during the testator's lifetime, papinian decides, and rightly, that the legacy is nevertheless a good one, because it was good when first written; for the opinion that a legacy becomes void, because something happens to deprive it of all material effect, is now rejected. if a man leaves his wife a legacy of her dowry, the gift is good, because the legacy is worth more than a mere right of action for the dowry. if, however, he has never received the dowry which he bequeaths, the emperors severus and antoninus have decided by rescript that the legacy is void, provided the general term 'dowry' is used, but good, if in giving it to the wife a definite sum or thing is specified, or described generally by reference to the dowry deed. if a thing bequeathed perishes through no act of the heir, the loss falls on the legatee: thus if a slave belonging to another person, who is given in this way, is manumitted through no act of the heir, the latter is not bound. if, however, the slave belongs to the heir, who manumits him, julian says that he is bound, and it is immaterial whether he knew or not that the slave had been bequeathed away from him. if a testator gives a legacy of female slaves along with their offspring, the legatee can claim the latter even if the mothers are dead, and so again if a legacy is given of ordinary slaves along with their vicarii or subordinates, the latter can be claimed even if the former are dead. but if the legacy be of a slave along with his peculium, and the slave is dead, or has been manumitted or alienated, the legacy of the peculium is extinguished; and similarly, if the legacy be of land with everything upon it, or with all its instruments of tillage, by the alienation of the land the legacy of the instruments of tillage is extinguished. if a flock be given as a legacy, which is subsequently reduced to a single sheep, this single survivor can be claimed; and julian says that in a legacy of a flock are comprised sheep which are added to it after the making of the will, a flock being but one aggregate composed of distinct members, just as a house is but one aggregate composed of distinct stones built together. so if the legacy consists of a house, we hold that pillars or marbles added to it after the making of the will pass under the bequest. if a slave's peculium be given as a legacy, the legatee undoubtedly profits by what is added to it, and is a loser by what is taken from it, during the testator's lifetime. whatever the slave acquires in the interval between the testator's death and the acceptance of the inheritance belongs, according to julian, to the legatee, if that legatee be the slave himself who is manumitted by the will, because a legacy of this kind vests from the acceptance of the inheritance: but if the legatee be a stranger, he is not entitled to such acquisitions, unless they are made by means of the peculium itself. a slave manumitted by a will is not entitled to his peculium unless it is expressly bequeathed to him, though, if the master manumits him in his lifetime, it is enough if it be not expressly taken from him, and to this effect the emperors severus and antoninus have decided by rescript: as also, that a legacy of his peculium to a slave does not carry with it the right to sue for money which he has expended on his master's account, and that a legacy of a peculium may be inferred from directions in a will that a slave is to be free so soon as he has made a statement of his accounts and made up any balance, which may be against him, from his peculium. incorporeal as well as corporeal things can be bequeathed: thus a man can leave a legacy even of a debt which is owed to him, and the heir can be compelled to transfer to the legatee his rights of action, unless the testator has exacted payment in his lifetime, in which case the legacy is extinguished. again, such a legacy as the following is good: 'be my heir bound to repair so and so's house, or to pay so and so's debts.' if a legacy be a general one, as of a slave or some other thing not specifically determined, the legatee is entitled to choose what slave, or what thing, he will have, unless the testator has expressed a contrary intention. a legacy of selection, that is, when a testator directs the legatee to select one from among his slaves, or any other class of things, was held to be given subject to an implied condition that the legatee should make the choice in person; so that if he died before doing so the legacy did not pass to his heir. by our constitution, however, we have made an improvement in this matter, and allowed the legatee's heir to exercise the right of selection, although the legatee has not done so personally in his lifetime; which enactment, through our careful attention to the subject, contains the further provision, that if there are either several colegatees to whom a right of selection has been bequeathed, and who cannot agree in their choice, or several coheirs of a single legatee, who differ through some wishing to choose this thing and others that, the question shall be decided by fortune--the legacy not being extinguished, which many of the jurists in an ungenerous spirit wished to make the rule--; that is to say, that lots shall be drawn, and he on whom the lot falls shall have a priority of choice over the rest. three persons only can be legatees who have testamentary capacity, that is, who are legally capable of taking under a will. formerly it was not allowed to leave either legacies or fiduciary bequests to uncertain persons, and even soldiers, as the emperor hadrian decided by rescript, were unable to benefit uncertain persons in this way. an uncertain person was held to be one of whom the testator had no certain conception, as the legatee in the following form: 'whoever bestows his daughter in marriage on my son, do thou, my heir, give him such or such land.' so too a legacy left to the first consuls designate after the writing of the will was held to be given to an uncertain person, and many others that might be instanced: and so it was held that freedom could not be bequeathed to an uncertain person, because it was settled that slaves ought to be enfranchised by name, and an uncertain person could not be appointed guardian. but a legacy given with a certain demonstration, that is, to an uncertain member of a certain class, was valid, for instance, the following: 'whoever of all my kindred now alive shall first marry my daughter, do thou, my heir, give him such and such thing.' it was, however, provided by imperial constitutions that legacies or fiduciary bequests left to uncertain persons and paid by mistake could not be recovered back. an afterborn stranger again could not take a legacy; an afterborn stranger being one who on his birth will not be a family heir to the testator; thus a grandson by an emancipated son was held to be an afterborn stranger to his grandfather. these parts of the law, however, have not been left without due alteration, a constitution having been inserted in our code by which we have in these respects amended the rules relating to legacies and fiduciary bequests no less than to inheritances, as will be made clear by a perusal of the enactment, which, however, still maintains the old rule that an uncertain person cannot be appointed guardian: for when a testator is appointing a guardian for his issue, he ought to be quite clear as to the person and character of the party he selects. an afterborn stranger could and still can be instituted heir, unless conceived of a woman who cannot by law be a man's wife. if a testator makes a mistake in any of the names of the legatee, the legacy is nevertheless valid provided there is no doubt as to the person he intended, and the same rule is very properly observed as to heirs as well as legatees; for names are used only to distinguish persons, and if the person can be ascertained in other ways a mistake in the name is immaterial. closely akin to this rule is another, namely, that an erroneous description of the thing bequeathed does not invalidate the bequest; for instance, if a testator says, 'i give and bequeath stichus my born slave,' the legacy is good, if it quite clear who is meant by stichus, even though it turn out that he was not born the testator's slave, but was purchased by him. similarly, if he describe stichus as 'the slave i bought from seius,' whereas in fact he bought him from some one else, the legacy is good, if it is clear what slave he intended to give. still less is a legacy invalidated from a wrong motive being assigned by the testator for giving it: if, for instance, he says, 'i give and bequeath stichus to titius, because he looked after my affairs while i was away,' or 'because i was acquitted on a capital charge through his undertaking my defence,' the legacy is still good, although in point of fact titius never did look after the testator's affairs, or never did, through his advocacy, procure his acquittal. but the law is different if the testator expresses his motive in the guise of a condition, as: 'i give and bequeath such and such land to titius, if he has looked after my affairs.' it is questioned whether a legacy to a slave of the heir is valid. it is clear that such a legacy is void if given unconditionally, even though the slave ceases to belong to the heir during the testator's lifetime: for a legacy which would be void if the testator died immediately after making his will ought not to become valid by the simple fact of the testator's living longer. such a legacy, however, is good if given subject to a condition, the question then being, whether at the vesting of the legacy the slave has ceased to belong to the heir. on the other hand, there is no doubt that even an absolute legacy to the master of a slave who is instituted heir is good: for, even supposing that the testator dies immediately after making the will, the right to the legacy does not necessarily belong to the person who is heir; for the inheritance and the legacy are separable, and a different person from the legatee may become heir through the slave; as happens if, before the slave accepts the inheritance at his master's bidding, he is conveyed to another person, or is manumitted and thus becomes heir himself; in both of which cases the legacy is valid. but if he remains in the same condition, and accepts at his master's bidding, the legacy is extinguished. a legacy given before an heir was appointed was formerly void, because a will derives its operation from the appointment of an heir, and accordingly such appointment is deemed the beginning and foundation of the whole testament, and for the same reason a slave could not be enfranchised before an heir was appointed. yet even the old lawyers themselves disapproved of sacrificing the real intentions of the testator by too strictly following the order of the writing: and we accordingly have deemed these rules unreasonable, and amended them by our constitution, which permits a legacy, and much more freedom, which is always more favoured, to be given before the appointment of an heir, or in the middle of the appointments, if there are several. again, a legacy to take effect after the death of the heir or legatee, as in the form: 'after my heir's death i give and bequeath,' was formerly void, as also was one to take effect on the day preceding the death of the heir or legatee. this too, however, we have corrected, by making such legacies as valid as they would be were they fiduciary bequests, lest in this point the latter should be found to have some superiority over the former. formerly too the gift, revocation, and transference of legacies by way of penalty was void. a penal legacy is one given in order to coerce the heir into doing or not doing something; for instance, the following: 'if my heir gives his daughter in marriage to titius,' or, conversely, 'if he does not give her in marriage to titius, let him pay ten aurei to seius'; or again, 'if my heir parts with my slave stichus,' or, conversely, 'if he does not part with him, let him pay ten aurei to titius.' and so strictly was this rule observed, that it is declared in a large number of imperial constitutions that even the emperor will accept no legacy by which a penalty is imposed on some other person: and such legacies were void even when given by a soldier's will, in which as a rule so much trouble was taken to carry out exactly the testator's wishes. moreover, sabinus was of opinion that a penal appointment of a coheir was void, as exemplified in the following: 'be titius my heir: if titius gives his daughter in marriage to seius, be seius my heir also'; the ground of the invalidity being that it made no difference in what way titius was constrained, whether by a legacy being left away from him, or by some one being appointed coheir. of these refinements, however, we disapproved, and have consequently enacted generally that bequests, even though given, revoked, or transferred in order to penalize the heir, shall be treated exactly like other legacies, except where the event on which the penal legacy is contingent is either impossible, illegal, or immoral: for such testamentary dispositions as these the opinion of my times will not permit. title xxi. of the ademption and transference of legacies legacies may be revoked either in a later clause of the will or by codicils, and the revocation may be made either in words contrary to those of the gift, as the gift thus 'i give and bequeath,' the revocation thus 'i do not give and bequeath,' or in words not contrary, that is to say, in any words whatsoever. a legacy may also be transferred from one person to another, as thus: 'i give and bequeath to seius the slave stichus whom i. bequeathed to titius,' and this may be done either by a later clause of the will or by codicils; the result being that the legacy is taken away from titius and simultaneously given to seius. title xxii. of the lex falcidia we have finally to consider the lex falcidia, the most recent enactment limiting the amount which can be given in legacies. the statute of the twelve tables had conferred complete liberty of bequest on testators, by which they were enabled to give away their whole patrimony in legacies, that statute having enacted: 'let a man's testamentary disposition of his property be regarded as valid.' this complete liberty of bequest, however, it was thought proper to limit in the interest of testators themselves, for intestacy was becoming common through the refusal of instituted heirs to accept inheritances from which they received little or no advantage at all. the lex furia and the lex voconia were enactments designed to remedy the evil, but as both were found inadequate to the purpose, the lex falcidia was finally passed, providing that no testator should be allowed to dispose of more than three-quarters of his property in legacies, or in other words, that whether there was a single heir instituted, or two or more, he or they should always be entitled to at least a quarter of the inheritance. if two heirs, say titius and seius, are instituted, and titius's share of the inheritance is either wholly exhausted in legacies specifically charged thereon, or burdened beyond the limit fixed by the statute, while no legacies at all are charged on seius, or at any rate legacies which exhaust it only to the extent of one half or less, the question arose whether, as seius has at least a quarter of the whole inheritance, titius was or was not entitled to retain anything out of the legacies which had been charged upon him: and it was settled that he could keep an entire fourth of his share of the inheritance; for the calculation of the lex falcidia is to be applied separately to the share of each of several heirs in the inheritance. the amount of the property upon which the calculation is brought to bear is its amount at the moment of the testator's decease. thus, to illustrate by an example, a testator who is worth a hundred aurei at his decease gives the whole hundred away in legacies: here, if before the heir accepts, the inheritance is so much augmented through slaves who belong to it, or by births of children from such of them as are females, or by the young of cattle that, even after paying away a hundred aurei in legacies, the heir will still have a clear fourth of the inheritance, the legatee's position is in no way improved, but a quarter of the sum given in legacies may still be deducted for himself by the heir. conversely, if only seventyfive aurei are given in legacies, and before acceptance the inheritance is so much diminished in value, say by fire, shipwreck, or death of slaves, that no more or even less than seventyfive aurei are left, the legatees can claim payment of their legacies in full. in this latter case, however, the heir is not prejudiced, for he is quite free to refused the inheritance: consequently, the legatees must come to terms with him, and content themselves with a portion of their legacies, lest they lose all through no one's taking under the will. when the calculation of the lex falcidia is made, the testator's debts and funeral expenses are first deducted, and the value of slaves whom he has manumitted in the will or directed to be manumitted is not reckoned as part of the inheritance; the residue is then divided so as to leave the heirs a clear fourth, the other three quarters being distributed among the legatees in proportion to the amount of the legacies given them respectively in the will. thus, if we suppose four hundred aurei to have been given in legacies, and the value of the inheritance, out of which they are to be paid, to be exactly that sum, each legatee must have his legacy abated by onefourth; if three hundred and fifty have been given in legacies, each legacy will be diminished by one-eighth; if five hundred, first a fifth, then a fourth, must be deducted: for when the amount given in legacies actually exceeds the sum of the inheritance, there must be struck off first the excess, and then the share which the heir is entitled to retain. title xxiii. of trust inheritances we now proceed to fiduciary bequests or trusts; and let us begin with trust inheritances. legacies or inheritances given by trust had originally no binding legal force, because no one could be compelled against his will to do what he was merely asked to do. as there were certain classes of persons to whom testators were unable to leave inheritances or legacies, when they wished to effect these objects they used to trust to the good faith of some one who had this kind of testamentary capacity, and whom they asked to give the inheritance, or the legacy, to the intended beneficiary; hence the name 'trusts,' because they were not enforced by legal obligation, but only by the transferor's sense of honesty. subsequently the emperor augustus, either out of regard for various favourites of his own, or because the request was said to have been made in the name of the emperor's safety, or moved thereto by individual and glaring cases of perfidy, commanded the consuls in certain cases to enforce the duty by their authority. and this being deemed equitable, and being approved by the people, there was gradually developed a new and permanent jurisdiction, and trusts became so popular that soon a special praetor was appointed to hear suits relating to them, who was called the trust praetor. the first requisite is an heir directly instituted, in trust to transfer the inheritance to another, for the will is void without an instituted heir in the first instance. accordingly, when a testator has written: 'lucius titius, be thou my heir,' he may add: 'i request you, lucius titius, as soon as you can accept my inheritance, to convey and transfer it to gaius seius'; or he can request him to transfer a part. so a trust may be either absolute or conditional, and to be performed either immediately or on a specified future day. after the transfer of the inheritance the transferor continues heir, the transferee being sometimes regarded as quasi-heir, sometimes as quasi-legatee. but during the reign of nero, in the consulate of trebellius maximus and annaeus seneca, a senatusconsult was passed providing that, when an inheritance is transferred in pursuance of a trust, all the actions which the civil law allows to be brought by or against the heir shall be maintainable by and against the transferee: and after this enactment the praetor used to give indirect or fictitious actions to and against the transferee as quasiheir. however, as the instituted heirs, when (as so often was the case) they were requested to transfer the whole or nearly the whole of an inheritance, declined to accept for what was no benefit, or at most a very slight benefit, to themselves, and this caused a failure of the trusts, afterwards, in the time of the emperor vespasian, and during the consulate of pegasus and pusio, the senate decreed that an heir who was requested to transfer the inheritance should have the same right to retain a fourth thereof as the lex falcidia gives to an heir charged with the payment of legacies, and gave a similar right of retaining the fourth of any specific thing left in trust. after the passing of this senatusconsult the heir, wherever it came into operation, was sole administrator, and the transferee of the residue was in the position of a partiary legatee, that is, of a legatee of a certain specified portion of the estate under the kind of bequest called participation, so that the stipulations which had been usual between an heir and a partiary legatee were now entered into by the heir and transferee, in order to secure a rateable division of the gains and losses arising out of the inheritance. accordingly, after this, if no more than threefourths of the inheritance was in trust to be transferred, then the sc. trebellianum governed the transfer, and both were liable to be sued for the debts of the inheritance in rateable portions, the heir by civil law, the transferee, as quasiheir, by that enactment. but if more than threefourths, or even the whole was left in trust to be transferred, the sc. pegasianum came into operation, and when once the heir had accepted, of course voluntarily, he was the sole administrator whether he retained onefourth or declined to retain it: but if he did, he entered into stipulations with the transferee similar to those usual between the heir and a partiary legatee, while if he did not, but transferred the whole inheritance, he covenanted with him as quasi-purchaser. if an instituted heir refuse to accept an inheritance from a suspicion that the liabilities exceed the assets, it is provided by the sc. pegasianum that, on the petition of the person to whom he is requested to transfer, he shall be ordered by the praetor to accept and transfer it, whereupon the transferee shall be as capable of suing and being sued as the transferee under the sc. trebellianum. in this case no stipulations are necessary, because by a concurrent operation of the two senatusconsults both the transferor is protected, and all actions relating to the inheritance pass to and against the transferee. as, however, the covenants which had become necessary through the sc. pegasianum were disliked even by the older lawyers, and are in certain cases considered injurious by the eminent jurist papinian, and it being our desire that our statute book should be clear and simple rather than complicated, we have, after placing these two senatusconsults side by side and examining their points of resemblance and difference, resolved to repeal the sc. pegasianum, as the later enactment, and to give exclusive authority to the sc. trebellianum, under which in future all trust inheritances are to be transferred, whether the testator has freely given his heir a fourth of the property, or more or less, or even nothing at all: provided always, that when the heir has either nothing or less than a fourth, it shall be lawful for him, under our authority expressed in this statute, to retain a fourth, or to recover it by action if he has already paid it over, the heir and the transferee being capable both of suing and being sued in proportion to their shares in the inheritance, after the analogy of the sc. trebellianum; and provided also, that if the heir voluntarily transfers the whole inheritance, the transferee shall be able to sue and be sued on all actions relating to the inheritance whatsoever. moreover, we have transferred to the sc. trebellianum the leading provision of the sc. pegasianum, whereby it was enacted that when an instituted heir refused to accept an inheritance offered to him, he could be compelled to accept and transfer the whole inheritance if the intended transferee so desired, and that all actions should pass to and against the latter: so that it is under the sc. trebellianum alone that the heir, if unwilling to accept, is now obliged to do so, if the intended transferee desire the inheritance, though to him personally no loss or profit can accrue under the transaction. it makes no difference whether it is a sole or part heir who is under a trust to another, or whether what he is requested to transfer is the whole or only a part of that to which he is heir; for we direct that the same rules shall be applied in the case of a part being transferred as we have said are observed in the transference of a whole inheritance. if the request addressed to the heir is to transfer the inheritance after deducting or reserving some specific thing which is equal in value to a fourth part thereof, such as land or anything else, the conveyance will be made under the sc. trebellianum, exactly as if he had been asked after retaining a fourth part of the inheritance to transfer the residue. there is, however, some difference between the two cases; for in the first, where the inheritance is transferred after deducting or reserving some specific thing, the senatusconsult has the effect of making the transferee the only person who can sue or be sued in respect of the inheritance, and the part retained by the heir is free from all encumbrances, exactly as if he had received it under a legacy; whereas in the second, where the heir, after retaining a fourth part of the inheritance, transfers the rest as requested, the actions are divided, the transferee being able to sue and be sued in respect of threefourths of the inheritance, and the heir in respect of the rest. moreover, if the heir is requested to transfer the inheritance after deducting or reserving only a single specific thing, which, however, in value is equivalent to the greater part of the inheritance, the transferee is still the only person who can sue and be sued, so that he ought well to weigh whether it is worth his while to take it: and the case is precisely the same, whether what the heir is directed to deduct or reserve before transferring is two or more specific things, or a definite sum which in fact is equivalent to a fourth or even the greater part of the inheritance. what we have said of a sole heir is equally true of one who is instituted only to a part. moreover, a man about to die intestate can charge the person to whom he knows his property will go by either the civil or praetorian law to transfer to some one else either his whole inheritance, or a part of it, or some specific thing, such as land, a slave, or money: but legacies have no validity unless given by will. the transferee may himself be charged by the deceased with a trust to transfer to some other person either the whole or a part of what he receives, or even something different. as has been already observed, trusts in their origin depended solely on the good faith of the heir, from which early history they derived both their name and their character: and it was for that reason that the emperor augustus made them legally binding obligations. and we, in our desire to surpass that prince, have recently made a constitution, suggested by a matter brought before us by the eminent tribonian, quaestor of our sacred palace, by which it is enacted, that if a testator charges his heir with a trust to transfer the whole inheritance or some specific thing, and the trust cannot be proved by writing or by the evidence of five witnesses--five being, as is known, the number required by law for the proof of oral trusts--through there having been fewer witnesses than five, or even none at all, and if the heir, whether it be his own son or some one else whom the testator has chosen to trust, and by whom he desired the transfer to be made, perfidiously refuses to execute the trust, and in fact denies that he was ever charged with it, the alleged beneficiary, having previously sworn to his own good faith, may put the heir upon his oath: whereupon the heir may be compelled to swear that no trust was ever charged upon him, or, in default, to transfer the inheritance or the specific thing, as the case may be, in order that the last wishes of the testator, the fulfilment of which he has left to the honour of his heir, may not be defeated. we have also prescribed the same procedure where the person charged with a trust is a legatee or already himself a transferee under a prior trust. finally, if the person charged admits the trust, but tries to shelter himself behind legal technicalities, he may most certainly be compelled to perform his obligation. title xxiv. of trust bequests of single things single things can be left in trust as well as inheritances; land, for instance, slaves, clothing, gold, silver, and coined money; and the trust may be imposed either on an heir or on a legatee, although a legatee cannot be charged with a legacy. not only the testator's property, but that of an heir, or legatee, or person already benefited by a trust, or any one else may be given by a trust. thus a legatee, or a person in whose favour the testator has already created a trust, may be asked to transfer either a thing left to him, or any other thing belonging to himself or a stranger, provided always that he is not charged with a trust to transfer more than he takes by the will, for in respect of such excess the trust would be void. when a person is charged by a trust to transfer a thing belonging to some one else, he must either purchase and deliver it, or pay its value. liberty can be left to a slave by a trust charging an heir, legatee, or other person already benefited by a trust of the testator's, with his manumission, and it makes no difference whether the slave is the property of the testator, of the heir, of the legatee or of a stranger: for a stranger's slave must be purchased and manumitted; and on his master's refusal to sell (which refusal is allowable only if the master has taken nothing under the will) the trust to enfranchise the slave is not extinguished, as though its execution had become impossible, but its execution is merely postponed; because it may become possible to free him at some future time, whenever an opportunity of purchasing him presents itself. a trust of manumission makes the slave the freedman, not of the testator, though he may have been his owner, but of the manumitter, whereas a direct bequest of liberty makes a slave the freedman of the testator, whence too he is called 'orcinus.' but a direct bequest of liberty can be made only to a slave who belongs to the testator both at the time of making his will and at that of his decease; and by a direct bequest of liberty is to be understood the case where the testator desires him to become free in virtue, as it were, of his own testament alone, and so does not ask some one else to manumit him. the words most commonly used to create a trust are i beg, i. request, i wish, i commission, i trust to your good faith; and they are just as binding when used separately as when united. title xxv. of codicils it is certain that codicils were not in use before the time of augustus, for lucius lentulus, who was also the originator of trusts, was the first to introduce them, in the following manner. being on the point of death in africa, he executed codicils, confirmed by his will, by which he begged augustus to do something for him as a trust; and on the emperor's fulfilling his wishes, other persons followed the precedent and discharged trusts created in this manner, and the daughter of lentulus paid legacies which could not have been legally claimed from her. it is said that augustus called a council of certain jurists, among them trebatius, who at that time enjoyed the highest reputation, and asked them whether the new usage could be sanctioned, or did not rather run counter to the received principles of law, and that trebatius recommended their admission, remarking 'how convenient and even necessary the practice was to citizens,' owing to the length of the journeys which were taken in those early days, and upon which a man might often be able to make codicils when he could not make a will. and subsequently, after codicils had been made by labeo, nobody doubted their complete validity. not only can codicils be made after a will, but a man dying intestate can create trusts by codicils, though papinian says that codicils executed before a will are invalid unless confirmed by a later express declaration that they shall be binding. but a rescript of the emperors severus and antoninus decides that the performance of a trust imposed by codicils written before a will may in any case be demanded, if it appears that the testator had not abandoned the intention expressed in them. an inheritance can neither be given nor taken away by codicils, nor, accordingly, can a child be disinherited in this way: for, if it were otherwise, the law of wills and of codicils would be confounded. by this it is meant that an inheritance cannot directly be given or taken away by codicils; for indirectly, by means of a trust, one can very well be given in this manner. nor again can a condition be imposed on an instituted heir, or a direct substitution be effected, by codicils. a man can make any number of codicils, and no solemnities are required for their execution. book iii. title i. of the devolution of inheritances on intestacy a man is said to die intestate who either has made no will at all, or has made one which is invalid, or if one which has been duly executed has been subsequently revoked, or rescinded, or finally, if no one accepts as heir under the testament. the inheritances of intestate persons go first, by the statute of the twelve tables, to family heirs; and family heirs, as we said above, are those who were in the power of the deceased at the time of his death, such as a son or daughter, a grandchild by a son, or a greatgrandchild by such grandchild if a male, and this whether the relationship be natural or adoptive. among them must also be reckoned children who, though not born in lawful wedlock, have been inscribed members of the curia according to the tenor of the imperial constitutions relating to them, and thus acquire the rights of family heirs, or who come within the terms of our constitutions by which we have enacted that, if any one shall cohabit with a woman whom he might have lawfully married, but for whom he did not at first feel marital affection, and shall after begetting children by her begin to feel such affection and formally marry her, and then have by her sons or daughters, not only shall those be lawful children and in their father's power who were born after the settlement of the dowry, but also those born before, to whom in reality the later born ones owed their legitimacy; and we have provided that this rule shall hold even though no children are born after the execution of the dowry deed, or if, having been born, they are dead. it is to be observed, however, that a grandchild or greatgrandchild is not a family heir, unless the person in the preceding degree has ceased to be in the power of the parent, either through having died, or by some other means, such as emancipation; for if at the time of a man's decease a son is in his power, a grandson by that son cannot be a family heir, and the case is exactly the same with more remote descendants. children too who are born after the ancestor's death, and who would have been in his power had they been born during his lifetime, are family heirs. family heirs succeed even though ignorant of their title, and they can take upon an intestacy even though insane, because whenever the law vests property in a person, even when he is ignorant of his title, it equally vests it in him if insane. thus, immediately on the parent's death, the ownership is as it were continued without any break, so that pupils who are family heirs do not require their guardian's sanction in order to succeed, for inheritances go to such heirs even though ignorant of their title; and similarly an insane family heir does not require his curator's consent in order to succeed, but takes by operation of law. sometimes, however, a family heir succeeds in this way to his parent, even though not in the latter's power at the time of his decease, as where a person returns from captivity after his father's death, this being the effect of the law of postliminium. and sometimes conversely a man is not a family heir although in the power of the deceased at the time of his death, as where the latter after his death is adjudged to have been guilty of treason, and his memory is thereby branded with infamy: such a person is unable to have a family heir, for his property is confiscated to the treasury, though one who would otherwise have succeeded him may be said to have in law been a family heir, and ceased to be such. where there is a son or daughter, and a grandchild by another son, these are called together to the inheritance, nor does the nearer in degree exclude the more remote, for it seems just that grandchildren should represent their father and take his place in the succession. similarly a grandchild by a son, and a greatgrandchild by a grandson are called to the inheritance together. and as it was thought just that grandchildren and greatgrandchildren should represent their father, it seemed consistent that the inheritance should be divided by the number of stems, and not by the number of individuals, so that a son should take onehalf, and grandchildren by another son the other: or, if two sons left children, that a single grandchild, or two grandchildren by one son, should take onehalf, and three or four grandchildren by the other son the other. in ascertaining whether, in any particular case, so and so is a family heir, one ought to regard only that moment of time at which it first was certain that the deceased died intestate, including hereunder the case of no one's accepting under the will. for instance, if a son be disinherited and a stranger instituted heir, and the son die after the decease of his father, but before it is certain that the heir instituted in the will either will not or cannot take the inheritance, a grandson will take as family heir to his grandfather, because he is the only descendant in existence when first it is certain that the ancestor died intestate; and of this there can be no doubt. a grandson born after, though conceived before, his grandfather's death, whose father dies in the interval between the grandfather's decease and desertion of the latter's will through failure of the instituted heir to take, is family heir to his grandfather; though it is obvious that if (other circumstances remaining the same) he is conceived as well as born after the grandfather's decease, he is no family heir, because he was never connected with his grandfather by any tie of relationship; exactly as a person adopted by an emancipated son is not among the children of, and therefore cannot be family heir to, the latter's father. and such persons, not being children in relation to the inheritance, cannot apply either for possession of the goods of the deceased as next of kin. so much for family heirs. as to emancipated children, they have, by the civil law, no rights to succeed to an intestate; for having ceased to be in the power of their parent, they are not family heirs, nor are they called by any other title in the statute of the twelve tables. the praetor, however, following natural equity, gives them possession of the goods of the deceased merely as children, exactly as if they had been in his power at the time of his death, and this whether they stand alone or whether there are family heirs as well. consequently, if a man die leaving two children, one emancipated, and the other in his power at the time of his decease, the latter is sole heir by the civil law, as being the only family heir; but through the former's being admitted to part of the inheritance by the indulgence of the praetor, the family heir becomes heir to part of the inheritance only. emancipated children, however, who have given themselves in adoption are not thus admitted, under the title of children, to share the property of their natural father, if at the time of his decease they are in their adoptive family; though it is otherwise if they are emancipated during his lifetime by their adoptive father, for then they are admitted as if they had been emancipated by him and had never been in an adoptive family, while, conversely, as regards their adoptive father, they are henceforth regarded as strangers. if, however, they are emancipated by the adoptive after the death of the natural father, as regards the former they are strangers all the same, and yet do not acquire the rank of children as regards succession to the property of the latter; the reason of this rule being the injustice of putting it within the power of an adoptive father to determine to whom the property of the natural father shall belong, whether to his children or to his agnates. adoptive are thus not so well off as natural children in respect of rights of succession: for by the indulgence of the praetor the latter retain their rank as children even after emancipation, although they lose it by the civil law; while the former, if emancipated, are not assisted even by the praetor. and there is nothing wrong in their being thus differently treated, because civil changes can affect rights annexed to a civil title, but not rights annexed to a natural title, and natural descendants, though on emancipation they cease to be family heirs, cannot cease to be children or grandchildren; whereas on the other hand adoptive children are regarded as strangers after emancipation, because they lose the title and name of son or daughter, which they have acquired by a civil change, namely adoption, by another civil change, namely emancipation. and the rule is the same in the possession of goods against the will which the praetor promises to children who are passed over in their parent's testament, that is to say, are neither instituted nor duly disinherited; for the praetor calls to this possession children who were in their parent's power at the time of his decease, or emancipated, but excludes those who at that time were in an adoptive family: still less does he here admit adoptive children emancipated by their adoptive father, for by emancipation they cease entirely to be children of his. we should observe, however, that though children who are in an adoptive family, or who are emancipated by their adoptive after the decease of their natural father, are not admitted on the death of the latter intestate by that part of the edict by which children are called to the possession of goods, they are called by another part, namely that which admits the cognates of the deceased, who, however, come in only if there are no family heirs, emancipated children, or agnates to take before them: for the praetor prefers children, whether family heirs or emancipated, to all other claimants, ranking in the second degree statutory successors, and in the third cognates, or next of kin. all these rules, however, which to our predecessors were sufficient, have received some emendation by the constitution which we have enacted relative to persons who have been given in adoption to others by their natural fathers; for we found cases in which sons by entering an adoptive family forfeited their right of succeeding their natural parents, and then, the tie of adoption being easily broken by emancipation, lost all title to succeed their adoptive parents as well. we have corrected this, in our usual manner, by a constitution which enacts that, when a natural father gives his son in adoption to another person, the son's rights shall remain the same in every particular as if he had continued in the power of his natural father, and the adoption had never taken place, except only that he shall be able to succeed his adoptive father should he die intestate. if, however, the latter makes a will, the son cannot obtain any part of the inheritance either by the civil or by the praetorian law, that is to say, either by impeaching the will as unduteous or by applying for possession against the will; for, being related by no tie of blood, the adoptive father is not bound either to institute him heir or to disinherit him, even though he has been adopted, in accordance with the sc. afinianum, from among three brothers; for, even under these circumstances, he is not entitled to a fourth of what he might have taken on intestacy, nor has he any action for its recovery. we have, however, by our constitution excepted persons adopted by natural ascendants, for between them and their adopters there is the natural tie of blood as well as the civil tie of adoption, and therefore in this case we have preserved the older law, as also in that of an independent person giving himself in adrogation: all of which enactment can be gathered in its special details from the tenor of the aforesaid constitution. by the ancient law too, which favoured the descent through males, those grandchildren only were called as family heirs, and preferred to agnates, who were related to the grandfather in this way: grandchildren by daughters, and greatgrandchildren by granddaughters, whom it regarded only as cognates, being called after the agnates in succession to their maternal grandfather or greatgrandfather, or their grandmother or greatgrandmother, whether paternal or maternal. but the emperors would not allow so unnatural a wrong to endure without sufficient correction, and accordingly, as people are, and are called, grandchildren and greatgrandchildren of a person whether they trace their descent through males or through females, they placed them altogether in the same rank and order of succession. in order, however, to bestow some privilege on those who had in their favour the provisions of the ancient law as well as natural right, they determined that grandchildren, greatgrandchildren, and others who traced their descent through a female should have their portion of the inheritance diminished by receiving less by onethird than their mother or grandmother would have taken, or than their father or grandfather, paternal or maternal, when the deceased, whose inheritance was in question, was a woman; and they excluded the agnates, if such descendants claimed the inheritance, even though they stood alone. thus, exactly as the statute of the twelve tables calls the grandchildren and greatgrandchildren to represent their deceased father in the succession to their grandfather, so the imperial legislation substitutes them for their deceased mother or grandmother, subject to the aforesaid deduction of a third part of the share which she personally would have taken. as, however, there was still some question as to the relative rights of such grandchildren and of the agnates, who on the authority of a certain constitution claimed a fourth part of the deceased's estate, we have repealed the said enactment, and not permitted its insertion in our code from that of theodosius. by the constitution which we have published, and by which we have altogether deprived it of validity, we have provided that in case of the survival of grandchildren by a daughter, greatgrandchildren by a granddaughter, or more remote descendants related through a female, the agnates shall have no claim to any part of the estate of the deceased, that collaterals may no longer be preferred to lineal descendants; which constitution we hereby reenact with all its force from the date originally determined: provided always, as we direct, that the inheritance shall be divided between sons and grandchildren by a daughter, or between all the grandchildren, and other more remote descendants, according to stocks, and not by counting heads, on the principle observed by the ancient law in dividing an inheritance between sons and grandchildren by a son, the issue obtaining without any diminution the portion which would have belonged to their mother or father, grandmother or grandfather: so that if, for instance, there be one or two children by one stock, and three or four by another, the one or two, and the three or four, shall together take respectively one moiety of the inheritance. title ii. of the statutory succession of agnates if there is no family heir, nor any of those persons called to the succession along with family heirs by the praetor or the imperial legislation, to take the inheritance in any way, it devolves, by the statute of the twelve tables, on the nearest agnate. agnates, as we have observed in the first book, are those cognates who trace their relationship through males, or, in other words, who are cognate through their respective fathers. thus, brothers by the same father are agnates, whether by the same mother or not, and are called 'consanguinei'; an uncle is agnate to his brother's son, and vice versa; and the children of brothers by the same father, who are called 'consobrini, are one another's agnates, so that it is easy to arrive at various degrees of agnation. children who are born after their father's decease acquire the rights of kinship exactly as if they had been born before that event. but the law does not give the inheritance to all the agnates, but only to those who were nearest in degree at the moment when it was first certain that the deceased died intestate. the relation of agnation can also be established by adoption, for instance, between a man's own sons and those whom he has adopted, all of whom are properly called consanguinei in relation to one another. so, too, if your brother, or your paternal uncle, or even a more remote agnate, adopts any one, that person undoubtedly becomes one of your agnates. male agnates have reciprocal rights of succession, however remote the degree of relationship: but the rule as regards females, on the other hand, was that they could not succeed as agnates to any one more remotely related to them than a brother, while they themselves could be succeeded by their male agnates, however distant the connexion: thus you, if a male, could take the inheritance of a daughter either of your brother or of your paternal uncle, or of your paternal aunt, but she could not take yours; the reason of this distinction being the seeming expediency of successions devolving as much as possible on males. but as it was most unjust that such females should be as completely excluded as if they were strangers, the praetor admits them to the possession of goods promised in that part of the edict in which mere natural kinship is recognised as a title to succession, under which they take provided there is no agnate, or other cognate of a nearer degree of relationship. now these distinctions were in no way due to the statute of the twelve tables, which, with the simplicity proper to all legislation, conferred reciprocal rights of succession on all agnates alike, whether males or females, and excluded no degree by reason merely of its remoteness, after the analogy of family heirs; but it was introduced by the jurists who came between the twelve tables and the imperial legislation, and who with their legal subtleties and refinements excluded females other than sisters altogether from agnatic succession. and no other scheme of succession was in those times heard of, until the praetors, by gradually mitigating to the best of their ability the harshness of the civil law, or by filling up voids in the old system, provided through their edicts a new one. mere cognation was thus in its various degrees recognised as a title to succession, and the praetors gave relief to such females through the possession of goods, which they promised to them in that part of the edict by which cognates are called to the succession. we, however, have followed the twelve tables in this department of law, and adhered to their principles: and, while we commend the praetors for their sense of equity, we cannot hold that their remedy was adequate; for when the degree of natural relationship was the same, and when the civil title of agnation was conferred by the older law on males and females alike, why should males be allowed to succeed all their agnates, and women (except sisters) be debarred from succeeding any? accordingly, we have restored the old rules in their integrity, and made the law on this subject an exact copy of the twelve tables, by enacting, in our constitution, that all 'statutory' successors, that is, persons tracing their descent from the deceased through males, shall be called alike to the succession as agnates on an intestacy, whether they be males or females, according to their proximity of degree; and that no females shall be excluded on the pretence that none but sisters have the right of succeeding by the title of kinship. by an addition to the same enactment we have deemed it right to transfer one, though only one, degree of cognates into the ranks of those who succeed by a statutory title, in order that not only the children of a brother may be called, as we have just explained, to the succession of their paternal uncle, but that the children of a sister too, even though only of the half blood on either side (but not her more remote descendants), may share with the former the inheritance of their uncle; so that, on the decease of a man who is paternal uncle to his brother's children, and maternal uncle to those of his sister, the nephews and nieces on either side will now succeed him alike, provided, of course, that the brother and sister do not survive, exactly as if they all traced their relationship through males, and thus all had a statutory title. but if the deceased leaves brothers and sisters who accept the inheritance, the remoter degrees are altogether excluded, the division in this case being made individually, that is to say, by counting heads, not stocks. if there are several degrees of agnates, the statute of the twelve tables clearly calls only the nearest, so that if, for instance, the deceased leaves a brother, and a nephew by another brother deceased, or a paternal uncle, the brother is preferred. and although that statute, in speaking of the nearest agnate, uses the singular number, there is no doubt that if there are several of the same degree they are all admitted: for though properly one can speak of 'the nearest degree' only when there are several, yet it is certain that even though all the agnates are in the same degree the inheritance belongs to them. if a man dies without having made a will at all, the agnate who takes is the one who was nearest at the time of the death of the deceased. but when a man dies, having made a will, the agnate who takes (if one is to take at all) is the one who is nearest when first it becomes certain that no one will accept the inheritance under the testament; for until that moment the deceased cannot properly be said to have died intestate at all, and this period of uncertainty is sometimes a long one, so that it not unfrequently happens that through the death, during it, of a nearer agnate, another becomes nearest who was not so at the death of the testator. in agnatic succession the established rule was that the right of accepting the inheritance could not pass from a nearer to a more remote degree; in other words, that if the nearest agnate, who, as we have described, is called to the inheritance, either refuses it or dies before acceptance, the agnates of the next grade have no claim to admittance under the twelve tables. this hard rule again the praetors did not leave entirely without correction, though their remedy, which consisted in the admission of such persons, since they were excluded from the rights of agnation, in the rank of cognates, was inadequate. but we, in our desire to have the law as complete as possible, have enacted in the constitution which in our clemency we have issued respecting the rights of patrons, that in agnatic succession the transference of the rights to accept from a nearer to a remoter degree shall not be refused: for it was most absurd that agnates should be denied a privilege which the praetor had conferred on cognates, especially as the burden of guardianship fell on the second degree of agnates if there was a failure of the first, the principle which we have now sanctioned being admitted so far as it imposed burdens, but rejected so far as it conferred a boon. to statutory succession the ascendant too is none the less called who emancipates a child, grandchild, or remoter descendant under a fiduciary agreement, which by our constitution is now implied in every emancipation. among the ancients the rule was different, for the parent acquired no rights of succession unless he had entered into a special agreement of trust to that effect prior to the emancipation. title iii. of the senatusconsultum tertullianum so strict were the rules of the statute of the twelve tables in preferring the issue of males, and excluding those who traced their relationship through females, that they did not confer reciprocal rights of inheritance even on a mother and her children, though the praetors called them to succeed one another as next of kin by promising them the possession of goods in the class of cognates. but this narrowness of the law was afterwards amended, the emperor claudius being the first to confer on a mother, as a consolation for the loss of her children, a statutory right to their inheritance, and afterwards, very full provisions were made by the sc. tertullianum, enacted in the time of the emperor hadrian, and relating to the melancholy succession of children by their mothers, though not by their grandmothers, whereby it was provided that a freeborn woman who had three or a freedwoman who had four children should be entitled to succeed to the goods of her children who died intestate, even though herself under paternal power; though, in this latter case, she cannot accept the inheritance except by the direction of the person in whose power she is. children of the deceased who are or who rank as family heirs, whether in the first or any other degree, are preferred to the mother, and even where the deceased is a woman her children by imperial constitutions have a prior claim to the mother, that is, to their own grandmother. again, the father of the deceased is preferred to the mother, but not so the paternal grandfather or greatgrandfather, at least when it is between them only that the question arises who is entitled. a brother by the same father excluded the mother from the succession to both sons and daughters, but a sister by the same father came in equally with the mother; and where there were both a brother and a sister by the same father, as well as a mother who was entitled by number of children, the brother excluded the mother, and divided the inheritance in equal moieties with the sister. by a constitution, however, which we have placed in the code made illustrious by our name, we have deemed it right to afford relief to the mother, in consideration of natural justice, of the pains of childbirth, and of the danger and even death which mothers often incur in this manner; for which reason we have judged it a sin that they should be prejudiced by a circumstance which is entirely fortuitous. for if a freeborn woman had not borne three, or a freedwoman four children, she was undeservedly defrauded of the succession to her own offspring; and yet what fault had she committed in bearing few rather than many children? accordingly, we have conferred on mothers a full statutory right of succession to their children, and even if they have had no other child than the one in question deceased. the earlier constitutions, in their review of statutory rights of succession, were in some points favourable, in others unfavourable, to mothers; thus in some cases they did not call them to the whole inheritance of their children, but deducted a third in favour of certain other persons with a statutory title, while in others they did exactly the opposite. we, however, have determined to follow a straightforward and simple path, and, preferring the mother to all other persons with a statutory title, to give her the entire succession of her sons, without deduction in favour of any other persons except a brother or sister, whether by the same father as the deceased, or possessing rights of cognation only; so that, as we have preferred the mother to all with a statutory title, so we call to the inheritance, along with her, all brothers and sisters of the deceased, whether statutorily entitled or not: provided that, if the only surviving relatives of the deceased are sisters, agnatic or cognatic, and a mother, the latter shall have onehalf, and all the sisters together the other half of the inheritance; if a mother and a brother or brothers, with or without sisters agnatic or cognatic, the inheritance shall be divided among mother, brothers, and sisters in equal portions. but, while we are legislating for mothers, we ought also to bestow some thought on their offspring; and accordingly mothers should observe that if they do not apply within a year for guardians for their children, either originally or in lieu of those who have been removed or excused, they will forfeit their title to succeed such children if they die under the age of puberty. a mother can succeed her child under the sc. tertullianum even though the child be illegitimate. title iv. of the senatusconsultum orfitianum conversely, children were admitted to succeed their mother on her death intestate by the sc. orfitianum, passed in the time of the emperor marcus, when orfitus and rufus were consuls: by which a statutory right of succession was conferred on both sons and daughters, even though in the power of another, in preference to their deceased mother's brothers and sisters and other agnates. as, however, grandsons were not called by this senatusconsult with a statutory title to the succession of their grandmothers, this was subsequently amended by imperial constitutions, providing that grandchildren should be called to inherit exactly like children. it is to be observed that rights of succession such as those conferred by the sc. tertullianum and orfitianum are not extinguished by loss of status, owing to the rule that rights of succession conferred by later statutes are not destroyed in this way, but only such as are conferred by the statute of the twelve tables; and finally that under the latter of these two enactments even illegitimate children are admitted to their mother's inheritance. if there are several heirs with a statutory title, some of whom do not accept, or are prevented from doing so by death or some other cause, their shares accrue in equal proportions to those who do accept the inheritance, or to their heirs, supposing they die before the failure of the others to take. title v. of the succession of cognates after family heirs, and persons who by the praetor and the imperial legislation are ranked as such, and after persons statutorily entitled, among whom are the agnates and those whom the aforesaid senatusconsults and our constitution have raised to the rank of agnates, the praetor calls the nearest cognates. in this class or order natural or blood relationship alone is considered: for agnates who have undergone loss of status and their children, though not regarded as having a statutory title under the statute of the twelve tables, are called by the praetor in the third order of the succession. the sole exceptions to this rule are emancipated brothers and sisters, though not in equal shares with them, but with some deduction, the amount of which can easily be ascertained from the terms of the constitution itself. but to other agnates of remoter degrees, even though they have not undergone loss of status, and still more to cognates, they are preferred by the aforesaid statute. again, collateral relations connected with the deceased only by the female line are called to the succession by the praetor in the third order as cognates; and children who are in an adoptive family are admitted in this order to the inheritance of their natural parent. it is clear that illegitimate children can have no agnates, for in law they have no father, and it is through the father that agnatic relationship is traced, while cognatic relationship is traced through the mother as well. on the same principle they cannot be held to be consanguinei of one another, for consanguinei are in a way agnatically related: consequently, they are connected with one another only as cognates, and in the same way too with the cognates of their mother. accordingly, they can succeed to the possession of goods under that part of the edict in which cognates are called by the title of mere kinship. in this place too we should observe that a person who claims as an agnate can be admitted to the inheritance, even though ten degrees removed from the deceased, both by the statute of the twelve tables, and by the edict in which the praetor promises the possession of goods to heirs statutorily entitled: but on the ground of mere natural kinship the praetor promises possession of goods to those cognates only who are within the sixth degree; the only persons in the seventh degree whom he admits as cognates being the children of a second cousin of the deceased. title vi. of the degrees of cognation it is here necessary to explain the way in which the degrees of natural relationship are reckoned. in the first place it is to be observed that they can be counted either upwards, or downwards, or crosswise, that is to say, collaterally. relations in the ascending line are parents, in the descending line, children, and similarly uncles and aunts paternal and maternal. in the ascending and descending lines a man's nearest cognate may be related to him in the first degree; in the collateral line he cannot be nearer to him than the second. relations in the first degree, reckoning upwards, are the father and mother; reckoning downwards, the son and daughter. those in the second degree, upwards, are grandfather and grandmother; downwards, grandson and granddaughter; and in the collateral line brother and sister. in the third degree, upwards, are the greatgrandfather and greatgrandmother; downwards, the greatgrandson and greatgranddaughter; in the collateral line, the sons and daughters of a brother or sister, and also uncles and aunts paternal and maternal. the father's brother is called 'patruus,' in greek 'patros', the mother's brother avunculus, in greek specifically 'matros,' though the term theios is used indifferently to indicate either. the father's sister is called 'amita,' the mother's 'matertera'; both go in greek by the name 'theia,' or, with some, 'tithis.' in the fourth degree, upwards, are the greatgreatgrandfather and the greatgreatgrandmother; downwards, the greatgreatgrandson and the great-great-granddaughter; in the collateral line, the paternal greatuncle and greataunt, that is to say, the grandfather's brother and sister: the same relations on the grandmother's side, that is to say, her brother and sister: and first cousins male and female, that is, children of brothers and sisters in relation to one another. the children of two sisters, in relation to one another, are properly called 'consobrini,' a corruption of 'consororini'; those of two brothers, in relation to one another, 'fratres patrueles,' if males, 'sorores patrueles,' if females; and those of a brother and a sister, in relation to one another, 'amitini'; thus the sons of your father's sister call you 'consobrinus,' and you call them 'amitini.' in the fifth degree, upwards, are the grandfather's great-grandfather and great-grandmother, downwards, the great-grandchildren of one's own grandchildren, and in the collateral line the grandchildren of a brother or sister, a great-grandfather's or great-grandmother's brother or sister, the children of one's first cousins, that is, of a 'frater-' or 'soror patruelis,' of a 'consobrinus' or 'consobrina,' of an 'amitinus' or 'amitina,' and first cousins once removed, that is to say, the children of a great-uncle or great-aunt paternal or maternal. in the sixth degree, upwards, are the great-grandfather's great-grandfather and great-grandmother; downwards, the great-grandchildren of a great-grandchild, and in the collateral line the great-grandchildren of a brother or sister, as also the brother and sister of a great-great-grandfather or great-great-grandmother, and second cousins, that is to say, the children of 'fratres-' or 'sorores patrueles,' of 'consobrini,' or of 'amitini.' this will be enough to show how the degrees of relationship are reckoned; for from what has been said it is easy to understand how we ought to calculate the remoter degrees also, each generation always adding one degree: so that it is far easier to say in what degree any one is related to some one else than to indicate his relationship by the proper specific term. the degrees of agnation are also reckoned in the same manner; but as truth is fixed in the mind of man much better by the eye than by the ear, we have deemed it necessary, after giving an account of the degree of relationship, to have a table of them inserted in the present book, that so the youth may be able by both ears and eyes to gain a most perfect knowledge of them. [note:--the pedagogical table is omitted in the present edition.] it is certain that the part of the edict in which the possession of goods is promised to the next of kin has nothing to do with the relationships of slaves with one another, nor is there any old statute by which such relationships were recognised. however, in the constitution which we have issued with regard to the rights of patrons--a subject which up to our times had been most obscure, and full of difficulties and confusion--we have been prompted by humanity to grant that if a slave shall beget children by either a free woman or another slave, or conversely if a slave woman shall bear children of either sex by either a freeman or a slave, and both the parents and the children (if born of a slave woman) shall become free, or if the mother being free, the father be a slave, and subsequently acquire his freedom, the children shall in all these cases succeed their father and mother, and the patron's rights lie dormant. and such children we have called to the succession not only of their parents, but also of one another reciprocally, by this enactment, whether those born in slavery and subsequently manumitted are the only children, or whether there be others conceived after their parents had obtained their freedom, and whether they all have the same father and mother, or the same father and different mothers, or vice versa; the rules applying to children born in lawful wedlock being applied here also. to sum up all that we have said, it appears that persons related in the same degree of cognation to the deceased are not always called together, and that even a remoter is sometimes preferred to a nearer cognate. for as family heirs and those whom we have enumerated as equivalent to family heirs have a priority over all other claimants, it is clear that a great-grandson or great-great-grandson is preferred to a brother, or the father or mother of the deceased; and yet the father and mother, as we have remarked above, are in the first degree of cognation, and the brother is in the second, while the great-grandson and great-great-grandson are only in the third and fourth respectively. and it is immaterial whether the descendant who ranks among family heirs was in the power of the deceased at the time of his death, or out of it through having been emancipated or through being the child of an emancipated child or a child of the female sex. when there are no family heirs, and none of those persons who we have said rank as such, an agnate who has lost none of his agnatic rights, even though very many degrees removed from the deceased, is usually preferred to a nearer cognate; for instance, the grandson or great-grandson of a paternal uncle has a better title than a maternal uncle or aunt. accordingly, in saying that the nearest cognate is preferred in the succession, or that, if there are several cognates in the nearest degree, they are called equally, we mean that this is the case if no one is entitled to priority, according to what we have said, as either being or ranking as a family heir, or as being an agnate; the only exceptions to this being emancipated brothers and sisters of the deceased who are called to succeed him, and who, in spite of their loss of status, are preferred to other agnates in a remoter degree than themselves. title vii. of the succession to freedmen let us now turn to the property of freedmen. these were originally allowed to pass over their patrons in their wills with impunity: for by the statute of the twelve tables the inheritance of a freedman devolved on his patron only when he died intestate without leaving a family heir. if he died intestate, but left a family heir, the patron was not entitled to any portion of this property, and this, if the family heir was a natural child, seemed to be no grievance; but if he was an adoptive child, it was clearly unfair that the patron should be debarred from all right to the succession. accordingly this injustice of the law was at a later period corrected by the praetor's edict, by which, if a freedman made a will, he was commanded to leave his patron half his property; and, if he left him nothing at all, or less than a half, possession of such half was given to him against the testament. if, on the other hand, he died intestate, leaving as family heir an adoptive son, the patron could obtain even against the latter possession of the goods of the deceased to the extent of onehalf. but the freedman was enabled to exclude the patron if he left natural children, whether in his power at the time of his death, or emancipated or given in adoption, provided that he made a will in which he instituted them heirs to any part of the succession, or that, being passed over, they demanded possession against the will under the edict: if disinherited, they did not avail to bar the patron. at a still later period the lex papia poppaea augmented the rights of patrons who had more wealthy freedmen. by this it was enacted that, whenever a freedman left property amounting in value to a hundred thousand sesterces and upwards, and not so many as three children, the patron, whether he died testate or intestate, should be entitled to a portion equal to that of a single child. accordingly, if the freedman left a single son or daughter as heir, the patron could claim half the property, exactly as if he had died without leaving any children: if he left two children as heirs, the patron could claim a third: if he left three, the patron was excluded altogether. in our constitution, however, which we have drawn up in a convenient form and in the greek language, so as to be known by all, we have established the following rules for application to such cases. if the freedman or freedwoman is less than a 'centenarius', that is, has a fortune of less than a hundred aurei (which we have reckoned as equivalent to the sum of a hundred thousand sesterces fixed by the lex papia), the patron shall have no right to any share in the succession if they make a will; while, if they die intestate without leaving any children, we have retained unimpaired the rights conferred on the patron by the twelve tables. if they are possessed of more than a hundred aurei, and leave a descendant or descendants of either sex and any degree to take the inheritance civil or praetorian, we have given to such child or children the succession to their parents, to the exclusion of every patron and his issue. if, however, they leave no children, and die intestate, we have called the patron or patroness to their whole inheritance: while if they make a will, passing over their patron or patroness, and leaving no children, or having disinherited such as they have, or (supposing them to be mothers or maternal grandfathers) having passed them over without leaving them the right to impeach the testament as unduteous, then, under our constitution, the patron shall succeed, by possession against the will, not, as before, to onehalf of the freedman's estate, but to onethird, or, if the freedman or freedwoman has left him less than this third in his or her will, to so much as will make up the difference. but this third shall be free from all charges, even from legacies or trust bequests in favour of the children of the freedman or freedwoman, all of which are to fall on the patron's coheirs. in the same constitution we have gathered together the rules applying to many other cases, which we deemed necessary for the complete settlement of this branch of law: for instance, a title to the succession of freedmen is conferred not only on patrons and patronesses, but on their children and collateral relatives to the fifth degree: all of which may be ascertained by reference to the constitution itself. if, however, there are several descendants of a patron or patroness, or of two or several, the nearest in degree is to take the succession of the freedman or freedwoman, which is to be divided, not among the stocks, but by counting the heads of those nearest in degree. and the same rule is to be observed with collaterals: for we have made the law of succession to freedmen almost identical with that relating to freeborn persons. all that has been said relates nowadays to freedmen who are roman citizens, for dediticii and latini iuniani having been together abolished there are now no others. as to a statutory right of succession to a latin, there never was any such thing; for men of this class, though during life they lived as free, yet as they drew their last breath they lost their liberty along with their life, and under the lex iunia their manumitters kept their property, like that of slaves, as a kind of peculium. it was subsequently provided by the sc. largianum that the manumitter's children, unless expressly disinherited, should be preferred to his external heirs in succession to the goods of a latin; and this was followed by the edict of the emperor trajan, providing that a latin who contrived, without the knowledge or consent of his patron, to obtain by imperial favour a grant of citizenship should live a citizen, but die a latin. owing, however, to the difficulties accompanying these changes of condition, and others as well, we have determined by our constitution to repeal for ever the lex iunia, the sc. largianum, and the edict of trajan, and to abolish them along with the latins themselves, so as to enable all freedmen to enjoy the citizenship of rome: and we have converted in a wonderful manner the modes in which persons became latins, with some additions, into modes of attaining roman citizenship. title viii. of the assignment of freedmen before we leave the subject of succession to freedmen, we should observe a resolution of the senate, to the effect that, though the property of freedmen belongs in equal portions to all the patron's children who are in the same degree, it shall yet be lawful for a parent to assign a freedman to one of his children, so that after his own death the assignee shall be considered his sole patron, and the other children who, had it not been for such assignment, would be admitted equally with him, shall have no claim to the succession whatever: though they recover their original rights if the assignee dies without issue. it is lawful to assign freedwomen as well as freedmen, and to daughters and granddaughters no less than to sons and grandsons; and the power of assignment is conferred on all who have two or more children in their power, and enables them to assign a freedman or freedwoman to such children while so subject to them. accordingly the question arose, whether the assignment becomes void, if the parent subsequently emancipates the assignee? and the affirmative opinion, which was held by julian and many others, has now become settled law. it is immaterial whether the assignment is made in a testament or not, and indeed patrons are enabled to exercise this power in any terms whatsoever, as is provided by the senatusconsult passed in the time of claudius, when suillus rufus and ostorius scapula were consuls. title ix. of possession of goods the law as to possession of goods was introduced by the praetor by way of amending the older system, and this not only in intestate succession, as has been described, but also in cases where deceased persons have made a will. for instance, although the posthumous child of a stranger, if instituted heir, could not by the civil law enter upon the inheritance, because his institution would be invalid, he could with the assistance of the praetor be made possessor of the goods by the praetorian law. such a one can now, however, by our constitution be lawfully instituted, as being no longer unrecognised by the civil law. sometimes, however, the praetor promises the possession of goods rather in confirmation of the old law than for the purpose of correcting or impugning it; as, for instance, when he gives possession in accordance with a duly executed will to those who have been instituted heirs therein. again, he calls family heirs and agnates to the possession of goods on an intestacy; and yet, even putting aside the possession of goods, the inheritance belongs to them already by the civil law. those whom the praetor calls to a succession do not become heirs in the eye of the law, for the praetor cannot make an heir, because persons become heirs by a statute only, or some similar ordinance such as a senatusconsult or an imperial constitution: but as the praetor gives them the possession of goods they become quasiheirs, and are called 'possessors of goods.' and several additional grades of grantees of possession were recognised by the praetor in his anxiety that no one might die without a successor; the right of entering upon an inheritance, which had been confined by the statute of the twelve tables within very narrow limits, having been conferred more extensively by him in the spirit of justice and equity. the following are the kinds of testamentary possession of goods. first, the socalled 'contratabular' possession, given to children who are merely passed over in the will. second, that which the praetor promises to all duly instituted heirs, and which is for that reason called secundum tabulas. then, having spoken of wills, the praetor passes on to cases of intestacy, in which, firstly, he gives the possession of goods which is called unde liberi to family heirs and those who in his edict are ranked as such. failing these, he gives it, secondly, to successors having a statutory title: thirdly, to the ten persons whom he preferred to the manumitter of a free person, if a stranger in relation to the latter, namely the latter's father and mother, grandparents paternal and maternal, children, grandchildren by daughters as well as by sons, and brothers and sisters whether of the whole or of the half blood only. the fourth degree of possession is that given to the nearest cognates: the fifth is that called tum quam ex familia: the sixth, that given to the patron and patroness, their children and parents: the seventh, that given to the husband or wife of the deceased: the eighth, that given to cognates of the manumitter. such was the system established by the praetorian jurisdiction. we, however, who have been careful to pass over nothing, but correct all defects by our constitutions, have retained, as necessary, the possession of goods called contra tabulas and secundum tabulas, and also the kinds of possession upon intestacy known as unde liberis and unde legitimi. the possession, however, which in the praetor's edict occupied the fifth place, and was called unde decem personae, we have with benevolent intentions and with a short treatment shown to be superfluous. its effect was to prefer to the extraneous manumitter the ten persons specified above; but our constitution, which we have made concerning the emancipation of children, has in all cases made the parent implicitly the manumitter, as previously under a fiduciary contract, and has attached this privilege to every such manumission, so as to render superfluous the aforesaid kind of possession of goods. we have therefore removed it, and put in its place the possession which the praetor promises to the nearest cognates, and which we have thus made the fifth kind instead of the sixth. the possession of goods which formerly stood seventh in the list, which was called tum quam ex familia, and that which stood eighth, namely, the possession entitled unde liberi patroni patronaeque et parentes eorum, we have altogether suppressed by our constitution respecting the rights of patrons. for, having assimilated the succession to freedmen to the succession to freeborn persons, with this sole exception--in order to preserve some difference between the two classes--that no one has any title to the former who is related more distantly than the fifth degree, we have left them sufficient remedies in the 'contratabular' possession, and in those called unde legitimi and unde cognati, wherewith to vindicate their rights, so that thus all the subtleties and inextricable confusion of these two kinds of possession of goods have been abolished. we have preserved in full force another possession of goods, which is called unde vir et uxor, and which occupied the ninth place in the old classification, and have given it a higher place, namely, the sixth. the tenth kind, which was called unde cognati manumissoris, we have very properly abolished for reasons which have been already stated: thus leaving in full operation only six ordinary kinds of possession of goods. the seventh, which follows them, was introduced with most excellent reason by the praetors, whose edict finally promised the possession of goods to those persons expressly entitled to it by any statute, senatusconsult, or imperial constitution; but this was not permanently incorporated by the praetor with either the intestate or the testamentary kinds of possession, but was accorded by him, as circumstances demanded, as an extreme and extraordinary remedy to those persons who claim, either under a will or on an intestacy, under statutes, senatusconsults, or the more recent legislation of the emperors. the praetor, having thus introduced many kinds of successions, and arranged them in a system, fixed a definite time within which the possession of goods must be applied for, as there are often several persons entitled in the same kind of succession, though related in different degrees to the deceased, in order to save the creditors of the estate from delay in their suits, and to provide them with a proper defendant to sue; and with the object also of making it less easy for them to obtain possession of the property of the deceased, as in bankruptcy, wherein they consulted their own advantage only. he allowed to children and parents, adoptive no less than natural, an interval of a year, and to all other persons one hundred days, within which to make the application. if a person entitled does not apply for the possession of goods within the time specified, his portion goes by accrual to those in the same degree or class with himself: or, if there be none, the praetor promises by his successory edict the possession to those in the next degree, exactly as if the person in the preceding one were nonexistent. if any one refuses the possession of goods which he has the opportunity of accepting, it is not unusual to wait until the aforesaid interval, within which possession must be applied for, has elapsed, but the next degree is admitted immediately under the same edict. in reckoning the interval, only those days are considered upon which the persons entitled could have made application. earlier emperors, however, have judiciously provided that no one need trouble himself expressly to apply for the possession of goods, but that, if he shall within the prescribed time in any manner have signified his intention to accept, he shall have the full benefit of such tacit acceptance. title x. of acquisition by adrogation there is another kind of universal succession which owes its introduction neither to the statute of the twelve tables nor to the praetor's edict, but to the law which is based upon custom and consent. when an independent person gives himself in adrogation, all his property, corporeal and incorporeal, and all debts due to him formerly passed in full ownership to the adrogator, except such rights as are extinguished by loss of status, for instance, bounden services of freedmen and rights of agnation. use and usufruct, though formerly enumerated among such rights, have now been saved by our constitution from extinction by the least loss of status. but we have now confined acquisition by adrogation within the same limits as acquisition through their children by natural parents; that is to say, adoptive as well as natural parents acquire no greater right in property which comes to children in their power from any extraneous source than a mere usufruct; the ownership is vested in the children themselves. but if a son who has been adrogated dies in his adoptive family, the whole of his property vests in the adrogator, failing those persons who, under our constitution, are preferred to the father in succession to property which is not acquired immediately from him. conversely, the adrogator is not, by strict law, suable for the debts of his adoptive son, but an action may be brought against him as his representative; and if he declines to defend the latter, the creditors are allowed, by an order of the magistrates having jurisdiction in such cases, to take possession of the property of which the usufruct as well as the ownership would have belonged to the son, had he not subjected himself to the power of another, and to dispose of it in the mode prescribed by law. title xi. of the adjudication of a deceased person's estate to preserve the gifts of liberty a new form of succession was added by a constitution of the emperor marcus, which provided that if slaves, who have received a bequest of liberty from their master in a will under which no heir takes, wish to have his property adjudged to them, their application shall be entertained. such is the substance of a rescript addressed by the emperor marcus to popilius rufus, which runs as follows: 'if there is no successor to take on the intestacy of virginius valens, who by his will has conferred freedom on certain of his slaves, and if, consequently, his property is in danger of being sold, the magistrate who has cognizance of such matters shall on application entertain your desire to have the property adjudged to you, in order to give effect to the bequests of liberty, direct and fiduciary, provided you give proper security to the creditors for payment of their claims in full. slaves to whom liberty has been directly bequeathed shall become free exactly as if the inheritance had been actually accepted, and those whom the heir was requested to manumit shall obtain their liberty from you; provided that if you will have the property adjudged to you only upon the condition, that even the slaves who have received a direct bequest of liberty shall become your freedmen, and if they, whose status is now in question, agree to this, we are ready to authorize compliance with your wishes. and lest the benefit afforded by this our rescript be rendered ineffectual in another way, by the treasury laying claim to the property, be it hereby known to those engaged in our service that the cause of liberty is to be preferred to pecuniary advantage, and that they must so effect such seizures as to preserve the freedom of those who could have obtained it had the inheritance been accepted under the will.' this rescript was a benefit not only to slaves thus liberated, but also to the deceased testators themselves, by saving their property from being seized and sold by their creditors; for it is certain that such seizure and sale cannot take place if the property has been adjudged on this account, because some one has come forward to defend the deceased, and a satisfactory defender too, who gives the creditors full security for payment. primarily, the rescript is applicable only where freedom is conferred by a will. how then will the case stand, if a man who dies intestate makes gifts of freedom by codicils, and on the intestacy no one accepts the inheritance? we answer, that the boon conferred by the constitution ought not here to be refused. no one can doubt that liberty given, in codicils, by a man who dies having made a will, is effectual. the terms of the constitution show that it comes into application when there is no successor on an intestacy; accordingly, it is of no use so long as it is uncertain whether there will be one or not; but, when this has been determined in the negative, it at once becomes applicable. again, it may be asked whether, if a person who abstains from accepting an inheritance can claim a judicial restoration of rights, the constitution can still be applied, and the goods adjudged under it? and what, if such person obtains a restoration after they have been actually adjudged in order to give effect to the bequest of freedom? we reply that gifts of liberty to which effect has once been given cannot possibly be recalled. the object with which this constitution was enacted was to give effect to bequests of liberty, and accordingly it is quite inapplicable where no such bequests are made. supposing, however, that a man manumits certain slaves in his lifetime, or in contemplation of death, and in order to prevent any questions arising whether the creditors have thereby been defrauded, the slaves are desirous of having the property adjudged to them, should this be permitted? and we are inclined to say that it should, though the point is not covered by the terms of the constitution. perceiving, however, that the enactment was wanting in many minute points of this kind, we have ourselves issued a very full constitution, in which have been collected many conceivable cases by which the law relating to this kind of succession has been completed, and with which any one can become acquainted by reading the constitution itself. title xii. of universal successions, now obsolete, in sale of goods upon bankruptcy, and under the sc. claudianum there were other kinds of universal succession in existence prior to that last before mentioned; for instance, the 'purchase of goods' which was introduced with many prolixities of form for the sale of insolvent debtors' estates, and which remained in use under the socalled 'ordinary' system of procedure. later generations adopted the 'extraordinary' procedure, and accordingly sales of goods became obsolete along with the ordinary procedure of which they were a part. creditors are now allowed to take possession of their debtor's property only by the order of a judge, and to dispose of it as to them seems most advantageous; all of which will appear more perfectly from the larger books of the digest. there was too a miserable form of universal acquisition under the sc. claudianum, when a free woman, through indulgence of her passion for a slave, lost her freedom by the senatusconsult, and with her freedom her property. but this enactment we deemed unworthy of our times, and have ordered its abolition in our empire, nor allowed it to be inserted in our digest. title xiii. of obligations let us now pass on to obligations. an obligation is a legal bond, with which we are bound by a necessity of performing some act according to the laws of our state. the leading division of obligations is into two kinds, civil and praetorian. those obligations are civil which are established by statute, or at least are sanctioned by the civil law; those are praetorian which the praetor has established by his own jurisdiction, and which are also called honorary. by another division they are arranged in four classes, contractual, quasicontractual, delictal, and quasidelictal. and first, we must examine those which are contractual, and which again fall into four species, for contract is concluded either by delivery, by a form of words, by writing, or by consent: each of which we will treat in detail. title xiv. of real contracts, or the modes in which obligations are contracted by delivery real contracts, or contracts concluded by delivery, are exemplified by loan for consumption, that is to say, loan of such things as are estimated by weight, number, or measure, for instance, wine, oil, corn, coined money, copper, silver, or gold: things in which we transfer our property on condition that the receiver shall transfer to us, at a future time, not the same things, but other things of the same kind and quality: and this contract is called mutuum, because thereby meum or mine becomes tuum or thine. the action to which it gives rise is called a condiction. again, a man is bound by a real obligation if he takes what is not owed him from another who pays him by mistake; and the latter can, as plaintiff, bring a condiction against him for its recovery, after the analogy of the action whose formula ran 'if it be proved that he ought to convey,' exactly as if the defendant had received a loan from him. consequently a pupil who, by mistake, is paid something which is not really owed him without his guardian's authority, will no more be bound by a condiction for the recovery of money not owed than by one for money received as a loan: though this kind of liability does not seem to be founded on contract; for a payment made in order to discharge a debt is intended to extinguish, not to create, an obligation. so too a person to whom a thing is lent for use is laid under a real obligation, and is liable to the action on a loan for use. the difference between this case and a loan for consumption is considerable, for here the intention is not to make the object lent the property of the borrower, who accordingly is bound to restore the same identical thing. again, if the receiver of a loan for consumption loses what he has received by some accident, such as fire, the fall of a building, shipwreck, or the attack of thieves or enemies, he still remains bound: but the borrower for use, though responsible for the greatest care in keeping what is lent him--and it is not enough that he has shown as much care as he usually bestows on his own affairs, if only some one else could have been more diligent in the charge of it--has not to answer for loss occasioned by fire or accident beyond his control, provided it did not occur through any fault of his own. otherwise, of course, it is different: for instance, if you choose to take with you on a journey a thing which has been lent to you for use, and lose it by being attacked by enemies or thieves, or by a shipwreck, it is beyond question that you will be liable for its restoration. a thing is not properly said to be lent for use if any recompense is received or agreed upon for the service; for where this is the case, the use of the thing is held to be hired, and the contract is of a different kind, for a loan for use ought always to be gratuitous. again, the obligation incurred by a person with whom a thing is deposited for custody is real, and he can be sued by the action of the deposit; he too being responsible for the restoration of the identical thing deposited, though only where it is lost through some positive act of commission on his part: for for carelessness, that is to say, inattention and negligence, he is not liable. thus a person from whom a thing is stolen, in the charge of which he has been most careless, cannot be called to account, because, if a man entrusts property to the custody of a careless friend, he has no one to blame but himself for his want of caution. finally, the creditor who takes a thing in pledge is under a real obligation, and is bound to restore the thing itself by the action of pledge. a pledge, however, is for the benefit of both parties; of the debtor, because it enables him to borrow more easily, and of the creditor, because he has the better security for repayment; and accordingly, it is a settled rule that the pledgee cannot be held responsible for more than the greatest care in the custody of the pledge; if he shows this, and still loses it by some accident, he himself is freed from all liability, without losing his right to sue for the debt. title xv. of verbal obligation an obligation is contracted by question and answer, that is to say, by a form of words, when we stipulate that property shall be conveyed to us, or some other act be performed in our favour. such verbal contracts ground two different action, namely condiction, when the stipulation is certain, and the action on stipulation, when it is uncertain; and the name is derived from stipulum, a word in use among the ancients to mean 'firm,' coming possibly from stipes, the trunk of a tree. in this contract the following forms of words were formerly sanctioned by usage: 'do you engage yourself to do so and so?' 'i do engage myself.' 'do you promise?' 'i do promise.' 'do you pledge your credit?' 'i pledge my credit.' 'do you guarantee?' 'i guarantee.' 'will you convey?' 'i will convey.' 'will you do?' 'i will do.' whether the stipulation is in latin, or greek, or any other language, is immaterial, provided the two parties understand one another, so that it is not necessary even that they should both speak in the same tongue, so long as the answer corresponds to the question, and thus two greeks, for instance, may contract an obligation in latin. but it was only in former times that the solemn forms referred to were in use: for subsequently, by the enactment of leo's constitution, their employment was rendered unnecessary, and nothing was afterwards required except that the parties should understand each other, and agree to the same thing, the words in which such agreement was expressed being immaterial. the terms of a stipulation may be absolute, or performance may either be postponed to some future time, or be made subject to a condition. an absolute stipulation may be exemplified by the following: 'do you promise to give five aurei?' and here (if the promise be made) that sum may be instantly sued for. as an instance of stipulation in diem, as it is called where a future day is fixed for payment, we may take the following: 'do you promise to give ten aurei on the first of march?' in such a stipulation as this, an immediate debt is created, but it cannot be sued upon until the arrival of the day fixed for payment: and even on that very day an action cannot be brought, because the debtor ought to have the whole of it allowed to him for payment; for otherwise, unless the whole day on which payment was promised is past, it cannot be certain that default has been made. if the terms of your stipulation run 'do you promise to pay me ten aurei a year so long as i live?' the obligation is deemed absolute, and the liability perpetual, for a debt cannot be owed till a certain time only; though if the promisee's heir sues for payment, he will be successfully met by the plea of contrary agreement. a stipulation is conditional, when performance is made to depend on some uncertain event in the future, so that it becomes actionable only on something being done or omitted: for instance, 'do you promise to give five aurei if titius is made consul?' if, however, a man stipulates in the form 'do you promise to give so and so, if i do not go up to the capitol?' the effect is the same as if he had stipulated for payment to himself at the time of his death. the immediate effect of a conditional stipulation is not a debt, but merely the expectation that at some time there will be a debt: and this expectation devolves on the stipulator's heir, supposing he dies himself before fulfilment of the condition. it is usual in stipulations to name a place for payment; for instance, 'do you promise to give at carthage?' such a stipulation as this, though in its terms absolute, implies a condition that enough time shall be allowed to the promisor to enable him to pay the money at carthage. accordingly, if a man at rome stipulates thus, 'do you promise to pay today at carthage?' the stipulation is void, because the performance of the act to be promised is a physical impossibility. conditions relating to past or present time either make the obligation void at once, or have no suspensive operation whatever. thus, in the stipulation 'do you promise to give so and so, if titius has been consul, or if maevius is alive?' the promise is void, if the condition is not satisfied; while if it is, it is binding at once: for events which in themselves are certain do not suspend the binding force of an obligation, however uncertain we ourselves may be about them. the performance or nonperformance of an act may be the object of a stipulation no less than the delivery of property, though where this is the case, it will be best to connect the nonperformance of the act to be performed, or the performance of the act to be omitted, with a pecuniary penalty to be paid in default, lest there be doubt as to the value of the act or omission, which will make it necessary for the plaintiff to prove to what damages he is entitled. thus, if it be a performance which is stipulated for, some such penalty should be added as in the following: 'if so and so is not done, do you promise to pay ten aurei as a penalty?' and if the performance of some acts, and the nonperformance of others, are bargained for in the same stipulation, a clause of the following kind should be added, 'if any default is made, either as contrary to what is agreed upon, or by way of nonperformance, do you promise to pay a penalty of ten aurei?' title xvi. of stipulations in which there are two creditors or two debtors there may be two or more parties on either side in a stipulation, that is to say, as promisors or promisees. joint promises are so constituted by the promisor answering, 'i promise,' after they have all first asked the question; for instance, if after two promises have separately stipulated from him, he answers, 'i promise to give so and so to each of you.' but if he first promises to titius, and then, on another's putting the question to him, promises to him too, there will be two distinct obligations, namely, one between him and each of the promisees, and they are not considered joint promisees at all. the usual form to constitute two or more joint promisors is as follows,--'maevius, do you promise to give five aurei? seius, do you promise to give the same five aurei?' and in answer they reply separately, 'i promise.' in obligations of this kind each joint promisee is owed the whole sum, and the whole sum can be claimed from each joint promisor; and yet in both cases but one payment is due, so that if one joint promisee receives the debt, or one joint promisor pays it, the obligation is thereby extinguished for all, and all are thereby released from it. of two joint promisors one may be bound absolutely, while performance by the other is postponed to a future day, or made to depend on a condition; but such postponement or such condition in no way prevents the stipulator from at once suing the one who was bound absolutely. title xvii. of stipulations made by slaves from his master's legal capacity a slave derives ability to be promisee in a stipulation. thus, as an inheritance in most matters represents the legal 'person' of the deceased, whatever a slave belonging to it stipulates for, before the inheritance is accepted, he acquires for the inheritance, and so for the person who subsequently becomes heir. all that a slave acquires by a stipulation he acquires for his master only, whether it was to that master, or himself, or his fellow slave, or no one in particular that performance was to be made under the contract; and the same principle applies to children in power, so far as they now are instruments of acquisition for their father. when, however, what is stipulated for is permission to do some specific act, that permission cannot extend beyond the person of the promisee: for instance, if a slave stipulates for permission to cross the promisor's land, he cannot himself be denied passage, though his master can. a stipulation by a slave belonging to joint owners enures to the benefit of all of them in proportion to the shares in which they own him, unless he stipulated at the bidding, or expressly in favour, of one of them only, in which case that one alone is benefited. where a jointly owned slave stipulates for the transfer of property which cannot be acquired for one of his two masters, the contract enures to the benefit of the other only: for instance, where the stipulation is for the transfer of a thing which already belongs to one of them. title xviii. of the different kinds of stipulations stipulations are either judicial, praetorian, conventional, or common: by the latter being meant those which are both praetorian and judicial. judicial stipulations are those which it is simply part of the judge's duty to require; for instance, security against fraud, or for the pursuit of a runaway slave, or (in default) for payment of his value. those are praetorian, which the praetor is bound to exact simply in virtue of his magisterial functions; for instance, security against apprehended damage, or for payment of legacies by an heir. under praetorian stipulations we must include also those directed by the aedile, for these too are based upon jurisdiction. conventional stipulations are those which arise merely from the agreement of the parties, apart from any direction of a judge or of the praetor, and which one may almost say are of as many different kinds as there are conceivable objects to a contract. common stipulations may be exemplified by that by which a guardian gives security that his ward's property will not be squandered or misappropriated, which he is sometimes required to enter into by the praetor, and sometimes also by a judge when the matter cannot be managed in any other way; or, again, we might take the stipulation by which an agent promises that his acts shall be ratified by his principal. title xix. of invalid stipulations anything, whether movable or immovable, which admits of private ownership, may be made the object of a stipulation; but if a man stipulates for the delivery of a thing which either does not or cannot exist, such as stichus, who is dead but whom he though alive, or an impossible creature, like a hippocentaur, the contract will be void. precisely the same principles applies where a man stipulates for the delivery of a thing which is sacred or religious, but which he thought was a subject of human ownership, or of a thing which is public, that is to say, devoted in perpetuity to the use and enjoyment of the people at large, like a forum or theatre, or of a free man whom he thought a slave, or of a thing which he is incapable of owning, or which is his own already. and the fact that a thing which is public may become private property, that a free man may become a slave, that the stipulator may become capable of owning such and such a thing, or that such and such a thing may cease to belong to him, will not avail to merely suspend the force of the stipulation in these cases, but it is void from the outset. conversely, a stipulation which originally was perfectly good may be avoided by the thing, which is its object, acquiring any of the characters just specified through no fault of the promisor. and a stipulation, such as 'do you promise to convey lucius titius when he shall be a slave' and others like it, are also void from the beginning; for objects which by their very nature cannot be owned by man cannot either in any way be made the object of an obligation. if one man promises that another shall convey, or do so and so, as, for instance, that titius shall give five aurei, he will not be bound, though he will if he promises to get titius to give them. if a man stipulates for conveyance to, or performance in favour of, another person who is not his paterfamilias, the contract is void; though of course performance to a third person may be bargained for (as in the stipulation 'do you promise to give to me or to seius?'); where, though the obligation is created in favour of the stipulator only, payment may still be lawfully made to seius, even against the stipulator's will, the result of which, if it is done, being that the promisor is entirely released from his obligation, while the stipulator can sue seius by the action of agency. if a man stipulates for payment of ten aurei to himself and another who is not his paterfamilias, the contract will be good, though there has been much doubt whether in such a case the stipulator can sue for the whole sum agreed upon, or only half; the law is now settled in favour of the smaller sum. if you stipulate for performance in favour of one in your power, all benefit under the contract is taken by yourself, for your words are as the words of your son, as his words are as yours, in all cases in which he is merely an instrument of acquisition for you. another circumstance by which a stipulation may be avoided is want of correspondence between question and answer, as where a man stipulates from you for payment of ten aurei, and you promise five, or vice versa; or where his question is unconditional, your answer conditional, or vice versa, provided only that in this latter case the difference is express and clear; that is to say, if he stipulates for payment on fulfilment of a condition, or on some determinate future day, and you answer: 'i. promise to pay today,' the contract is void; but if you merely answer: 'i promise,' you are held by this laconic reply to have undertaken payment on the day, or subject to the condition specified; for it is not essential that every word used by the stipulator should be repeated in the answer of the promise. again, no valid stipulation can be made between two persons of whom one is in the power of the other. a slave indeed cannot be under an obligation to either his master or anybody else: but children in power can be bound in favour of any one except their own paterfamilias. the dumb, of course, cannot either stipulate or promise, nor can the deaf, for the promisee in stipulation must hear the answer, and the promisor must hear the question; and this makes it clear that we are speaking of persons only who are stone deaf, not of those who (as it is said) are hard of hearing. a lunatic cannot enter into any contract at all, because he does not understand what he is doing. on the other hand a pupil can enter into any contract, provided that he has his guardian's authority, when necessary, as it is for incurring an obligation, though not for imposing an obligation on another person. this concession of legal capacity of disposition is manifestly reasonable in respect of children who have acquired to some understanding, for children below the age of seven years, or who have just passed that age, resemble lunatics in want of intelligence. those, however, who have just completed their seventh year are permitted, by a beneficent interpretation of the law, in order to promote their interests, to have the same capacity as those approaching the age of puberty; but a child below the latter age, who is in paternal power, cannot bind himself even with his father's sanction. an impossible condition is one which, according to the course of nature, cannot be fulfilled, as, for instance, if one says: 'do you promise to give if i. touch the sky with my finger?' but if the stipulation runs: 'do you promise to give if i do not touch the sky with my finger?' it is considered unconditional, and accordingly can be sued upon at once. again, a verbal obligation made between persons who are not present with one another is void. this rule, however, afforded contentious persons opportunities of litigation, by alleging, after some interval, that they, or their adversaries, had not been present on the occasion in question; and we have therefore issued a constitution, addressed to the advocates of caesarea, in order with the more dispatch to settle such disputes, whereby it is enacted that written documents in evidence of a contract which recite the presence of the parties shall be taken to be indisputable proof of the fact, unless the person, who resorts to allegations usually so disgraceful, proves by the clearest evidence, either documentary or borne by credible witnesses, that he or his adversary was elsewhere than alleged during the whole day on which the document is stated to have been executed. formerly, a man could not stipulate that a thing should be conveyed to him after his own death, or after that of the promisor; nor could one person who was in another's power even stipulate for conveyance after that person's death, because he was deemed to speak with the voice of his parent or master; and stipulations for conveyance the day before the promisee's or promisor's decease were also void. stipulation, however, as has already been remarked, derive their validity from the consent of the contracting parties, and we therefore introduced a necessary emendation in respect also of this rule of law, by providing that a stipulation shall be good which bargains for performance either after the death, or the day before the death, of either promisee or promisor. again, a stipulation in the form: 'do you promise to give today, if such or such a ship arrives from asia tomorrow?' was formerly void, as being preposterous in its expression, because what should come last is put first. leo, however, of famous memory held that a preposterous stipulation in the settlement of a dowry ought not to be rejected as void, and we have determined to allow it perfect validity in every case, and not merely in that in which it was formerly sanctioned. a stipulation, say by titius, in the form: 'do you promise to give when i shall die' or 'when you shall die'? is good now, as indeed it always was even under the older law. so too a stipulation for performance after the death of a third person is good. if a document in evidence of a contract states that so and so promised, the promise is deemed to have been given in answer to a preceding question. when several acts of conveyance or performance are comprised in a single stipulation, if the promisor simply answers: 'i promise to convey,' he becomes liable on each and all of them, but if he answers that he will convey only one or some of them, he incurs an obligation in respect of those only which are comprised in his answer, there being in reality several distinct stipulations of which only one or some are considered to have acquired binding force: for for each act of conveyance or performance there ought to be a separate question and a separate answer. as has been already observed, no one can validly stipulate for performance to a person other than himself, for the purpose of this kind of obligation is to enable persons to acquire for themselves that whereby they are profited, and a stipulator is not profited if the conveyance is made to a third person. hence, if it be wished to make a stipulation in favour of any such third person, a penalty should be stipulated for, to be paid, in default of performance of that which is in reality the object of the contract, to the party who otherwise would have no interest in such performance; for when one stipulates for a penalty, it is not his interest in what is the real contract which is considered, but only the amount to be forfeited to him upon nonfulfilment of the condition. so that a stipulation for conveyance to titius, but made by some one else, is void: but the addition of a penalty, in the form 'if you do not convey, do you promise to pay me so many aurei?' makes it good and actionable. but where the promisor stipulates in favour of a third person, having himself an interest in the performance of the promise, the stipulation is good. for instance, if a guardian, after beginning to exercise his tutorial functions, retires from their exercise in favour of his fellow guardian, taking from him by stipulation security for the due charge of the ward's property, he has a sufficient interest in the performance of this promise, because the ward could have sued him in case of maladministration, and therefore the obligation is binding. so too a stipulation will be good by which one bargains for delivery to one's agent, or for payment to one's creditor, for in the latter case one may be so far interested in the payment that, if it not be made, one will become liable to a penalty or to having a foreclosure of estates which one has mortgaged. conversely, he who promises that another shall do so and so is not bound unless he promises a penalty in default; and, again, a man cannot validly stipulate that property which will hereafter be his shall be conveyed to him as soon as it becomes his own. if a stipulator and the promisor mean different things, there is no contractual obligation, but it is just as if no answer had been made to the question; for instance, if one stipulates from you for stichus, and you think he means pamphilus, whose name you believed to be stichus. a promise made for an illegal or immoral purpose, as, for instance, to commit a sacrilege or homicide, is void. if a man stipulates for performance on the fulfilment of a condition, and dies before such fulfilment, his heir can sue on the contract when it occurs: and the heir of the promisor can be sued under the same circumstances. a stipulation for a conveyance this year, or this month, cannot be sued upon until the whole year, or the whole month, has elapsed: and similarly the promisee cannot sue immediately upon a stipulation for the conveyance of an estate or a slave, but only after allowing a sufficient interval for the conveyance to be made. title xx. of fidejussors or sureties very often other persons, called fidejussors or sureties, are bound for the promisor, being taken by promises as additional security. such sureties may accompany any obligation, whether real, verbal, literal or consensual: and it is immaterial even whether the principal obligation be civil or natural, so that a man may go surety for the obligation of a slave either to a stranger or to his master. a fidejussor is not only bound himself, but his obligation devolves also on his heir' and the contract of suretyship may be entered into before no less than after the creation of the principal obligation. if there are several fidejussors to the same obligation, each of them, however many they are, is liable for the whole amount, and the creditor may sue whichever he chooses for the whole; but by the letter of hadrian he may be compelled to sue for only an aliquot part, determined by the number of sureties who are solvent at the commencement of the action: so that if one of them is insolvent at that time the liability of the rest is proportionately increased. thus, if one fidejussor pay the whole amount, he alone suffers by the insolvency of the principal debtor; but this is his own fault, as he might have availed himself of the letter of hadrian, and required that the claim should be reduced to his rateable portion. fidejussors cannot be bound for more than their principal, for their obligation is but accessory to the latter's, and the accessory cannot contain more than the principal; but they can be bound for less. thus, if the principal debtor promised ten aurei, the fidejussor can well be bound for five, but not vice versa; and if the principal's promise is absolute, that of the fidejussor may be conditional, though a conditional promise cannot be absolutely guaranteed, for more and less is to be understood of time as well as of quantity, immediate payment being regarded as more, and future payment as less. for the recovery of anything paid by him for the principal the fidejussor can sue the latter by the action on agency. a fidejussor may be taken in greek, by using the expressions 'tei emei pistei keleuo,' 'lego,' 'thelo,' or 'boulomai'; and 'phemi' will be taken as equivalent to 'lego.' it is to be observed that in the stipulations of fidejussors the general rule is that whatever is stated in writing to have been done is taken to have really been done; and, accordingly, it is settled law that if a man signs his name to a paper stating that he became a fidejussor, all formalities are presumed to have been duly observed. title xxi. of literal obligation formerly there was a kind of obligation made by writing, and said to be contracted by the entry of a debt in a ledger; but such entries have nowadays gone out of use. of course, if a man states in writing that he owes money which has never been paid over to him, he cannot be allowed, after a considerable interval, to defend himself by the plea that the money was not, in fact, advanced; for this is a point which has frequently been settled by imperial constitutions. the consequence is, that even at the present day a person who is estopped from this plea is bound by his written signature, which (even of course where there is no stipulation) is ground for a condiction. the length of time after which this defence could not be pleaded was formerly fixed by imperial constitutions at five years; but it has been reduced by our constitution, in order to save creditors from a more extended risk of being defrauded of their money, so that now it cannot be advanced after the lapse of two years from the date of the alleged payment. title xxii. of obligation by consent obligations contracted by mere consent are exemplified by sale, hire, partnership and agency, which are called consensual contracts because no writing, nor the presence of the parties, nor any delivery is required to make the obligation actionable, but the consent of the parties is sufficient. parties who are not present together, therefore, can form these contracts by letter, for instance, or by messenger: and they are in their nature bilateral, that is, both parties incur a reciprocal obligation to perform whatever is just and fair, whereas verbal contracts are unilateral, one party being promisee, and the other alone promisor. title xxiii. of purchase and sale the contract of purchase and sale is complete immediately the price is agreed upon, and even before the price or as much as any earnest is paid: for earnest is merely evidence of the completion of the contract. in respect of sales unattested by any written evidence this is a reasonable rule, and so far as they are concerned we have made no innovations. by one of our constitutions, however, we have enacted, that no sale effected by an agreement in writing shall be good or binding, unless that agreement is written by the contracting parties themselves, or, if written by some one else, is at least signed by them, or finally, if written by a notary, is duly drawn by him and executed by the parties. so long as any of these requirements is unsatisfied, there is room to retract, and either purchaser or vendor may withdraw from the agreement with impunity--provided, that is to say, that no earnest has been given. where earnest has been given, and either party refuses to perform the contract, that party, whether the agreement be in writing or not, if purchaser forfeits what he has given, and if vendor is compelled to restore double of what he has received, even though there has been no express agreement in the matter of earnest. it is necessary that the price should be settled, for without a price there can be no purchase and sale, and it ought to be a fixed and certain price. for instance, where the parties agreed that the thing should be sold at a price to be subsequently fixed by titius, the older jurists doubted much whether this was a valid contract of sale or not. the doubt has been settled in the following way by our decision; if the third person named actually fixes the price, it must certainly be paid, as settled by him, and the thing must be delivered, in order to give effect to the sale; the purchaser (if not fairly treated) suing by the action on purchase, and the vendor by the action on sale. but if the third person named will not or cannot fix the price, the sale will be void, because no price has been settled. this rule, which we have adopted with regard to sales, may reasonably be extended also to contracts of hire. the price, too, should be in money; for it used to be much disputed whether anything else, such as a slave, a piece of land, or a robe, could be treated as a price. sabinus and cassius held the affirmative, explaining thus the common theory that exchange is a species, and the oldest species, of purchase and sale; and in their support they quoted the lines of homer, who says in a certain passage that the army of the greeks procured themselves wine by giving other things in exchange, the actual words being as follow: 'then the longhaired greeks bought themselves wine, some with bronze, some with shining iron, some with hides, some with live oxen, some with slaves.' the other school maintained the negative, and distinguished between exchange on the one hand, and purchase and sale on the other: for if an exchange were the same thing as a sale, it would be impossible to determine which is the thing sold, and which is the price, and both things cannot be regarded in each of these characters. the opinion, however, of proculus, who affirmed that exchange was a species of contract apart by itself, and distinct from sale, has deservedly prevailed, as it is confirmed by other lines from homer, and by still more cogent reasons, and this has been admitted by preceding emperors, and is fully stated in our digest. as soon as the contract of sale is concluded--that is, as we have said, as soon as the price is agreed upon, if the contract is not in writing--the thing sold is immediately at the risk of the purchaser, even though it has not yet been delivered to him. accordingly, if a slave dies, or is injured in any part of his body, or if a house is either totally or partially burnt down, or if a piece of land is wholly or partially swept away by a river flood, or is reduced in acreage by an inundation, or made of less value by a storm blowing down some of its trees, the loss falls on the purchaser, who must pay the price even though he has not got what he purchased. the vendor is not responsible and does not suffer for anything not due to any design or fault of his own. if, however, after the purchase of a piece of land, it receives an increase by alluvion, it is the purchaser who profits thereby: for the profit ought to belong to him who also bears the risk. and if a slave who has been sold runs away, or is stolen, without any design or fault of the vendor, one should look to see whether the latter expressly undertook to keep him safely until delivery was made; for, if he did this, the loss falls upon him, though otherwise he incurs no liability: and this is a rule which applies to all animals and other objects whatsoever. the vendor, however, will be bound to transfer to the purchaser all his rights of action for the recovery of the object or damages, for, not having yet delivered it to the purchaser, he still remains its owner, and the same holds good of the penal actions on theft and on unlawful damage. a sale may be made conditionally as well as absolutely. the following is an example of a conditional sale: 'if stichus meets with your approval within a certain time, he shall be purchased by you for so many aurei.' if a man buys a piece of land which is sacred, religious, or public, such as a forum or basilica, knowing it to be such, the purchase is void. but if the vendor has fraudulently induced him to believe that what he was buying was not sacred, or was private property, as he cannot legally have what he contracted for, he can bring the action on purchase to recover damages for what he has lost by the fraud; and the same rule applies to the purchase of a free man represented by the vendor to be a slave. title xxiv. of letting and hiring the contract of hire resembles very closely the contract of sale, and the same rules of law apply to both. thus, as the contract of sale is concluded as soon as the price is agreed upon, so the contract of hire is held to be concluded as soon as the sum to be paid for the hiring is settled, and from that moment the letter has an action on the letting, and the hirer on the hiring. what we have said above as to a sale in which the price is left to be fixed by a third person must be understood to apply also to a contract of hire in which the amount to be paid for hire is left to be fixed in the same way. consequently, if a man gives clothes to a fuller to clean or finish, or to a tailor to mend, and the amount of hire is not fixed at the time, but left to subsequent agreement between the parties, a contract of hire cannot properly be said to have been concluded, but an action is given on the circumstances, as amounting to an innominate contract. again, a question often arose in connexion with the contract of hire similar to that which was so common, namely, whether an exchange was a sale. for instance, what is the nature of the transaction if a man gives you the use or enjoyment of a thing, and receives in return the use or enjoyment of another thing from you? it is now settled that this is not a contract of hire, but a kind of contract apart by itself. thus, if a man had one ox, and his neighbour another, and they agreed that each should in turn lend the other his ox for ten days to make use of, and then one of the oxen died while working for the man to whom it did not belong, an action cannot be brought on hire, nor on a loan for use, for a loan for use ought to be gratuitous: but an action should be brought as on an innominate contract. so nearly akin, indeed, is purchase and sale, to letting and hiring, that in some cases it is a question to which class of the two a contract belongs. as an instance may be taken those lands which are delivered over to be enjoyed for ever, upon the terms, that is to say, that so long as the rent is paid to the owner it shall not be lawful for the latter to take the lands away from either the original hirer, or his heir, or any one else to whom he or his heirs has conveyed them by sale, gift, dowry, or in any other way whatsoever. the questionings of the earlier lawyers, some of whom thought this kind of contract a hiring, and others a sale, occasioned the enactment of the statute of zeno, which determined that this contract of emphyteusis, as it is called, was of a peculiar nature, and should not be included under either hire or sale, but should rest on the terms of the agreement in each particular case: so that if anything were agreed upon between the parties, this should bind them exactly as if it were inherent in the very nature of the contract; while if they did not agree expressly at whose risk the land should be, it should be at that of the owner in case of total destruction, and at that of the tenant, if the injury were merely partial. and these rules we have adopted in our legislation. again, if a goldsmith agrees to make titius rings of a certain weight and pattern out of his own gold for, say, ten aurei, it is a question whether the contract is purchase and sale or letting and hiring. cassius says the material is bought and sold, the labour let and hired; but it is now settled that there is only a purchase and sale. but if titius provided the gold, and agreed to pay him for his work, the contract is clearly a letting and hiring. the hirer ought to observe all the terms of the contract, and in the absence of express agreement his obligations should be ascertained by reference to what is fair and equitable. where a man has either given or promised for hire for the use of clothes, silver, or a beast of burden, he is required in his charge of it to show as much care as the most diligent father of a family shows in his own affairs; if he do this, and still accidentally lose it, he will be under no obligation to restore either it or its value. if the hirer dies before the time fixed for the termination of the contract has elapsed, his heir succeeds to his rights and obligations in respect thereof. title xxv. of partnership a partnership either extends to all the goods of the partners, when the greeks call it by the special name of 'koinopraxia,' or is confined to a single sort of business, such as the purchase and sale of slaves, oil, wine, or grain. if no express agreement has been made as to the division of the profit and loss, an equal division of both is understood to be intended, but if it has, such agreement ought to be carried into effect; and there has never been any doubt as to the validity of a contract between two partners that one shall take twothirds of the profit and bear twothirds of the loss, and that the remaining third shall be taken and borne respectively by the other. if titius and seius agreed that the former should take twothirds of the profits, and bear only onethird of the loss, and that the latter should bear twothirds of the loss, and take only onethird of the profits, it has been made a question whether such an agreement ought to be held valid. quintus mucius thought such an arrangement contrary to the very nature of partnership, and therefore not to be supported: but servius sulpicius, whose opinion has prevailed, was of a different view, because the services of a particular partner are often so valuable that it is only just to admit him to the business on more favourable terms than the rest. it is certain that a partnership may be formed on the terms that one partner shall contribute all the capital, and that the profits shall be divided equally, for a man's services are often equivalent to capital. indeed, the opinion of quintus mucius is now so generally rejected, that it is admitted to be a valid contract that a partner shall take a share of the profits, and bear no share in the loss, which indeed servius, consistently with his opinion, maintained himself. this of course must be taken to mean that if there is a profit on one transaction, and a loss on another, a balance should be struck, and only the net profit be considered as profits. it is quite clear that if the shares are expressed in one event only, as for instance in the event of profit, but not in the event of loss, or vice versa, the same proportions must be observed, in the event of which no mention has been made, as in the other. the continuance of partnership depends on the continuing consent of the members; it is dissolved by notice of withdrawal from any one of them. but of course if the object of a partner in withdrawing from the partnership is to fraudulently keep for himself some accruing gain--for instance, if a partner in all goods succeeds to an inheritance, and withdraws from the partnership in order to have exclusive possession thereof--he will be compelled to divide this gain with his partners; but what he gains undesignedly after withdrawing he keeps to himself, and his partner always has the exclusive benefit of whatever accrues to him after such withdrawal. again, a partnership is dissolved by the death of a partner, for when a man enters into a contract of partnership, he selects as his partner a definite person. accordingly, a partnership based on the agreement of even several persons is dissolved by the death of one of them, even though several others survive, unless when the contract was made it was otherwise agreed. so too a partnership formed for the attainment of some particular object is terminated when that object is attained. it is clear too that a partnership is dissolved by the forfeiture of the property of one of the partners, for such an one, as he is replaced by a successor, is reckoned civilly dead. so again, if one of the partners is in such embarrassed circumstances as to surrender all his property to his creditors, and all that he possessed is sold to satisfy the public or private claims upon him, the partnership is dissolved, though if the members still agree to be partners, a new partnership would seem to have begun. it has been doubted whether one partner is answerable to another on the action of partnership for any wrong less than fraud, like the bailee in a deposit, or whether he is not suable also for carelessness, that is to say, for inattention and negligence; but the latter opinion has now prevailed, with this limitation, that a partner cannot be required to satisfy the highest standard of carefulness, provided that in partnership business he shows as much diligence as he does in his own private affairs: the reason for this being that if a man chooses as his partner a careless person, he has no one to blame but himself. title xxvi. of agency of the contract of agency there are five modes. a man gives you a commission either for his own exclusive benefit, or for his own and yours together, or for that of some third person, or for his own and the third person's, or for the third person's and yours. a commission given simply for the sake of the agent gives rise in reality to no relation of agency, and accordingly no obligation comes into existence, and therefore no action. a commission is given solely for the benefit of the principal when, for instance, the latter instructs you to manage his business, to buy him a piece of land, or to enter into a stipulation as surety for him. it is given for your benefit and for that of your principal together when he, for instance, commissions you to lend money at interest to a person who borrows it for your principal's benefit; or where, on your wishing to sue him as surety for some one else, he commissions you to sue his principal, himself undertaking all risk: or where, at his risk, you stipulate for payment from a person whom he substitutes for himself as your debtor. it is given for the benefit of a third person when, for instance, some one commissions you to look after titius's affairs as general agent, or to buy titius a piece of land, or to go surety for him. it is for the benefit of the principal and a third person when, for instance, some one instructs you to look after affairs common to himself and titius, or to buy an estate for himself and titius, or to go surety for them jointly. it is for the benefit of yourself and a third person when, for instance, some one instructs you to lend money at interest to titius; if it were to lend money free of interest, it would be for the benefit of the third person only. it is for your benefit alone if, for instance, some one commissions you to invest your money in the purchase of land rather than to lend it at interest, or vice versa. but such a commission is not really so much a commission in the eye of the law as a mere piece of advice, and consequently will not give rise to an obligation, for the law holds no one responsible as on agency for mere advice given, even if it turns out ill for the person advised, for every one can find out for himself whether what he is advised to do is likely to turn out well or ill. consequently, if you have money lying idle in your cashbox, and on so and so's advice buy something with it, or put it out at interest, you cannot sue that person by the action on agency although your purchase or loan turns out a bad speculation; and it has even been questioned, on this principle, whether a man is suable on agency who commissions you to lend money to titius; but the prevalent opinion is that of sabinus, that so specific a recommendation is sufficient to support an action, because (without it) you would never have lent your money to titius at all. so too instructions to commit an unlawful or immoral act do not create a legal obligation--as if titius were to instigate you to steal, or to do an injury to the property or person of some one else; and even if you act on his instructions, and have to pay a penalty in consequence, you cannot recover its amount from titius. an agent ought not to exceed the terms of his commission. thus, if some one commissions you to purchase an estate for him, but not to exceed the price of a hundred aurei, or to go surety for titius up to that amount, you ought not in either transaction to exceed the sum specified: for otherwise you will not be able to sue him on the agency. sabinus and cassius even thought that in such a case you could not successfully sue him even for a hundred aurei, though the leaders of the opposite school differed from them, and the latter opinion is undoubtedly less harsh. if you buy the estate for less, you will have a right of action against him, for a direction to buy an estate for a hundred aurei is regarded as an implied direction to buy, if possible, for a smaller sum. the authority given to an agent duly constituted can be annulled by revocation before he commences to act upon it. similarly, the death of either the principal or the agent before the latter commences to act extinguishes the agent's authority; but equity has so far modified this rule that if, after the death of a principal and without having notice of his decease, an agent executes his commission, he can sue on the agency: for otherwise the law would be penalizing a reasonable and unavoidable ignorance. similar to this is the rule, that debtors who pay a manumitted steward, say, of titius, without notice of his manumission, are discharged from liability, though by the strict letter of the law they are not discharged, because they have not paid the person whom they were bound to pay. it is open to every one to decline a commission of agency, but acceptance must be followed by execution, or by a prompt resignation, in order to enable the principal to carry out his purpose either personally or by the appointment of another agent. unless the resignation is made in such time that the principal can attain his object without suffering any prejudice, an action will lie at his suit, in default of proof by the agent that he could not resign before, or that his resignation, though inconvenient, was justifiable. a commission of agency may be made to take effect from a specified future day, or may be subject to a condition. finally, it should be observed that unless the agent's services are gratuitous, the relation between him and the principal will not be agency proper, but some other kind of contract; for if a remuneration is fixed, the contract is one of hiring. and generally we may say that in all cases where, supposing a man's services are gratuitous, there would be a contract of agency or deposit, there is held to be a contract of hiring if remuneration is agreed upon; consequently, if you give clothes to a fuller to clean or to finish, or to a tailor to mend, without agreeing upon or promising any remuneration, you can be sued by the action on agency. title xxvii. of quasi-contractual obligation having enumerated the different kinds of contracts, let us now examine those obligations also which do not originate, properly speaking, in contract, but which, as they do not arise from a delict, seem to be quasicontractual. thus, if one man has managed the business of another during the latter's absence, each can sue the other by the action on uncommissioned agency; the direct action being available to him whose business was managed, the contrary action to him who managed it. it is clear that these actions cannot properly be said to originate in a contract, for their peculiarity is that they lie only where one man has come forward and managed the business of another without having received any commission so to do, and that other is thereby laid under a legal obligation even though he knows nothing of what has taken place. the reason of this is the general convenience; otherwise people might be summoned away by some sudden event of pressing importance, and without commissioning any one to look after and manage their affairs, the result of which would be that during their absence those affairs would be entirely neglected: and of course no one would be likely to attend to them if he were to have no action for the recovery of any outlay he might have incurred in so doing. conversely, as the uncommissioned agent, if his management is good, lays his principal under a legal obligation, so too he is himself answerable to the latter for an account of his management; and herein he must show that he has satisfied the highest standard of carefulness, for to have displayed such carefulness as he is wont to exercise in his own affairs is not enough, if only a more diligent person could have managed the business better. guardians, again, who can be sued by the action on guardianship, cannot properly be said to be bound by contract, for there is no contract between guardian and ward: but their obligation, as it certainly does not originate in delict, may be said to be quasicontractual. in this case too each party has a remedy against the other: not only can the ward sue the guardian directly on the guardianship, but the guardian can also sue the ward by the contrary action of the same name, if he has either incurred any outlay in managing the ward's property, or bound himself on his behalf, or pledged his own property as security for the ward's creditors. again, where persons own property jointly without being partners, by having, for instance, a joint bequest or gift made to them, and one of them is liable to be sued by the other in a partition suit because he alone has taken its fruits, or because the plaintiff has laid out money on it in necessary expenses: here the defendant cannot properly be said to be bound by contract, for there has been no contract made between the parties; but as his obligation is not based on delict, it may be said to be quasicontractual. the case is exactly the same between joint heirs, one of whom is liable to be sued by the other on one of these grounds in an action for partition of the inheritance. so, too, the obligation of an heir to discharge legacies cannot properly be called contractual, for it cannot be said that the legatee has contracted at all with either the heir or the testator: yet, as the heir is not bound by a delict, his obligation would seem to be quasicontractual. again, a person to whom money not owed is paid by mistake is thereby laid under a quasicontractual obligation; an obligation, indeed, which is so far from being contractual, that, logically, it may be said to arise from the extinction rather than from the formation of a contract; for when a man pays over money, intending thereby to discharge a debt, his purpose is clearly to loose a bond by which he is already bound, not to bind himself by a fresh one. still, the person to whom money is thus paid is laid under an obligation exactly as if he had taken a loan for consumption, and therefore he is liable to a condiction. under certain circumstances money which is not owed, and which is paid by mistake, is not recoverable; the rule of the older lawyers on this point being that wherever a defendant's denial of his obligation is punished by duplication of the damages to be recovered--as in actions under the lex aquilia, and for the recovery of a legacy--he cannot get the money back on this plea. the older lawyers, however, applied this rule only to such legacies of specific sums of money as were given by condemnation; but by our constitution, by which we have assimilated legacies and trust bequests, we have made this duplication of damages on denial an incident of all actions for their recovery, provided the legatee or beneficiary is a church, or other holy place honoured for its devotion to religion and piety. such legacies, although paid when not due, cannot be reclaimed. title xxviii. of persons through whom we can acquire obligations having thus gone through the classes of contractual and quasicontractual obligations, we must remark that rights can be acquired by you not only on your own contracts, but also on those of persons in your power--that is to say, your slaves and children. what is acquired by the contracts of your slaves becomes wholly yours; but the acquisitions of children in your power by obligations must be divided on the principle of ownership and usufruct laid down in our constitution: that is to say, of the material results of an action brought on an obligation made in favour of a son the father shall have the usufruct, though the ownership is reserved to the son himself: provided, of course, that the action is brought by the father, in accordance with the distinction drawn in our recent constitution. freemen also, and the slaves of another person, acquire for you if you possess them in good faith, but only in two cases, namely, when they acquire by their own labour, or in dealing with your property. a usufructuary or usuary slave acquires under the same conditions for him who has the usufruct or use. it is settled law that a slave jointly owned acquires for all his owners in the proportion of their property in him, unless he names one exclusively in a stipulation, or in the delivery of property to himself, in which case he acquires for him alone; as in the stipulation 'do you promise to convey to titius, my master?' if it was by the direction of one of his joint owners only that he entered into a stipulation, the effect was formerly doubted; but now it has been settled by our decision that (as is said above) under such circumstances he acquires for him only who gave him the order. title xxix. of the modes in which obligations are discharged an obligation is always extinguished by performance of what is owed, or by performance of something else with the creditor's assent. it is immaterial from whom the performance proceeds--be it the debtor himself, or some one else on his behalf: for on performance by a third person the debtor is released, whether he knows of it or not, and even when it is against his will. performance by the debtor releases, besides himself, his sureties, and conversely performance by a surety releases, besides himself, the principal debtor. acceptilation is another mode of extinguishing an obligation, and is, in its nature, an acknowledgement of a fictitious performance. for instance, if something is due to titius under a verbal contract, and he wishes to release it, it can be done by his allowing the debtor to ask 'that which i promised thee has thou received?' and by his replying 'i have received it.' an acceptilation can be made in greek, provided the form corresponds to that of the latin words, as 'exeis labon denaria tosa; exo labon.' this process, as we said, discharges only obligations which arise from verbal contract, and no others, for it seemed only natural that where words can bind words may also loose: but a debt due from any other cause may be transformed into a debt by stipulation, and then released by an imaginary verbal payment or acceptilation. so, too, as a debt can be lawfully discharged in part, so acceptilation may be made of part only. a stipulation has been invented, commonly called aquilian, by which an obligation of any kind whatsoever can be clothed in stipulation form, and then extinguished by acceptilation; for by this process any kind of obligation may be novated. its terms, as settled by gallus aquilius, are as follow: 'whatever, and on whatsoever ground, you are or shall be compellable to convey to or do for me, either now or on a future specified day, and for whatsoever i have or shall have against you an action personal or real, or any extraordinary remedy, and whatsoever of mine you hold or possess naturally or civilly, or would possess, or now fail to possess through some wilful fault of your own--as the value of each and all of these claims aulua agerius stipulated for the payment of such and such a sum, and payment was formally promised by numerius negidius.' then conversely, numerius negidius asked aulus agerius, 'hast thou received the whole of what i have today engaged, by the aquilian stipulation, to pay thee?' to which aulus agerius replied 'i have it, and account it received.' novation is another mode of extinguishing an obligation, and takes place when you owe seius a sum, and he stipulates for payment thereof from titius; for the intervention of a new person gives birth to a new obligation, and the first obligation is transformed into the second, and ceases to exist. sometimes indeed the first stipulation is avoided by novation even though the second is of no effect: for instance, if you owe titius a sum, and he stipulates for payment thereof from a pupil without his guardian's authority, he loses his claim altogether, for you, the original debtor, are discharged, and the second obligation is unenforceable. the same does not hold if one stipulate from a slave; for then the former debtor continues bound as fully as if one had stipulated from no one. but when the original debtor is the promisor, a second stipulation produces a novation only if it contains something new--if a condition, for instance, or a term, or a surety be added, or taken away--though, supposing the addition of a condition, we must be understood to mean that a novation is produced only if the condition is accomplished: if it fails, the prior obligation continues in force. among the older lawyers it was an established rule, that a novation was effected only when it was with that intention that the parties entered into the second obligation; but as this still left it doubtful when the intention was present and when absent, various presumptions were established as to the matter by different persons in different cases. we therefore issued our constitution, enacting most clearly that no novation shall take place unless the contracting parties expressly state their intention to be the extinction of the prior obligation, and that in default of such statement, the first obligation shall subsist, and have the second also added to it: the result being two obligations resting each on its own independent ground, as is prescribed by the constitution, and as can be more fully ascertained by perusing the same. moreover, those obligations which are contracted by consent alone are dissolved by a contrary agreement. for instance, if titius and seius agree that the latter shall buy an estate at tusculum for a hundred aurei, and then before execution on either side by payment of the price or delivery of the estate they arrange to abandon the sale, they are both released. the case is the same with hire and the other contracts which are formed by consent alone. book iv. title i. of obligations arising from delict having treated in the preceding book of contractual and quasicontractual obligations, it remains to inquire into obligations arising from delict. the former, as we remarked in the proper place, are divided into four kinds; but of these latter there is but one kind, for, like obligations arising from real contracts, they all originate in some act, that is to say, in the delict itself, such as a theft, a robbery, wrongful damage, or an injury. theft is a fraudulent dealing with property, either in itself, or in its use, or in its possession: an offence which is prohibited by natural law. the term furtum, or theft, is derived either from furvum, meaning 'black,' because it is effected secretly and under cover, and usually by night: or from fraus, or from ferre, meaning 'carrying off'; or from the greek word phor, thief, which indeed is itself derived from pherein, to carry off. there are two kinds of theft, theft detected in the commission, and simple theft: the possession of stolen goods discovered upon search, and the introduction of stolen goods, are not (as will appear below) so much specific kinds of theft as actionable circumstances connected with theft. a thief detected in the commission is termed by the greeks ep'autophoro; in this kind is included not only he who is actually caught in the act of theft, but also he who is detected in the place where the theft is committed; for instance, one who steals from a house, and is caught before he has got outside the door; or who steals olives from an olive garden, or grapes from a vineyard, and is caught while still in the olive garden or vineyard. and the definition of theft detected in the commission must be even further extended, so as to include the thief who is caught or even seen with the stolen goods still in his hands, whether the place be public or private, and whether the person who sees or catches him be the owner of the property, or some third person, provided he has not yet escaped to the place where he intended to take and deposit his booty: for if he once escapes there, it is not theft detected in the commission, even if he be found with the stolen goods upon him. what is simple theft is clear from what has been said: that is to say, it is all theft which is not detected in the commission. the offence of discovery of stolen goods occurs when a person's premises are searched in the presence of witnesses, and the stolen property is found thereon; this makes him liable, even though innocent of theft, to a special action for receiving stolen goods. to introduce stolen goods is to pass them off to a man, on whose premises they are discovered, provided this be done with the intent that they shall be discovered on his premises rather than on those of the introducer. the man on whose premises they are found may sue the latter, though innocent of theft, in an action for the introduction of stolen goods. there is also an action for refusal of search, available against him who prevents another who wishes to look in the presence of witnesses for stolen property; and finally, by the action for nonproduction of stolen goods, a penalty is imposed by the praetor's edict on him who has failed to produce stolen property which is searched for and found on his premises. but the lastnamed actions, namely, those for receiving stolen goods, for introducing them, for refusal of search, and for nonproduction, have now become obsolete: for the search for such property is no longer made in the old fashion, and accordingly these actions went out of use also. it is obvious, however, that any one who knowingly receives and hides stolen property may be sued by the action for simple theft. the penalty for theft detected in the commission is four times the value, and for simple theft twice the value, of the property stolen, whether the thief be a slave or a free person. theft is not confined to carrying away the property of another with the intent of appropriation, but comprises also all corporeal dealing with the property of another against the will of the owner. thus, for a pawnee to use the thing which he has in pawn, or to use a thing committed to one's keeping as a deposit, or to put a thing which is lent for use to a different use than that for which it was lent, is theft; to borrow plate, for instance, on the representation that the borrower is going to entertain his friends, and then to carry it away into the country: or to borrow a horse for a drive, and then to take it out of the neighbourhood, or like the man in the old story, to take it into battle. with regard, however, to those persons who put a thing lent for use to a different purpose than the lender contemplated, the rule is that they are guilty of theft only if they know it to be contrary to the will of the owner, and that if he had notice he would refuse permission; but if they believe that he would give permission, it is not theft: and the distinction is just, for there is no theft without unlawful intention. it is also said not to be theft if a man turns a thing lent for use to a use other than he believes its owner would sanction, though in point of fact its owner is consenting. whence arose the following question: if antoninus solicits the slave of peri to steal property of the latter, and convey it to him, and the slave informs peri of it, who, wishing to detect antoninus in the very act, allows the slave to convey the property to him; can an action of theft, or for corrupting the slave, or neither, be maintained against antoninus? the case was submitted to us, and we examined the conflicting opinions of the earlier jurists on the matter: some of whom thought that neither action lay, and others, that peri might sue on theft only. but we, in order to put an end to such quibbles, have enacted by our decision that in such case both the action on theft and that for corrupting a slave shall lie. it is true that the slave has not been corrupted by the advances made to him, so that the case does not come within the rules which introduced the action for such corruption: yet the wouldbe corrupter's intention was to make him dishonest, so that he is liable to a penal action, exactly as if the slave had actually been corrupted, lest his immunity from punishment should encourage others to perpetrate a similar wrong on a slave less strong to resist temptation. a free man too may be the subject of a theft--for instance, a child in my power, if secretly removed from my control. so too a man sometimes steals his own property--for instance, a debtor who purloins the goods which he has pledged to a creditor. theft may be chargeable on a person who is not the perpetrator; on him, namely, by whose aid and abetment a theft is committed. among such persons we may mention the man who knocks money out of your hand for another to pick up, or who stands in your way that another may snatch something from you, or scatters your sheep or your oxen, that another may steal them, like the man in the old books, who waved a red cloth to frighten a herd. if the same thing were done as a frolic, without the intention of assisting a theft, the proper action is not theft, but on the case. where, however, titius commits theft with the aid of maevius, both are liable to an action on theft. a man, too, is held to have aided and abetted a theft who places a ladder under a window, or breaks open a window or a door, in order that another may steal, or who lends tools for the breaking of them open, or a ladder to place under a window, if he knows the object for which they are borrowed. it is clear that a man is not liable on theft, who, though he advises and instigates an offence, does not actually aid in its commission. if a child in power, or a slave, steal property of his father or master, it is theft, and the property is deemed stolen, so that no one can acquire it by usucapion until it has returned into the hands of the owner; but no action will lie on the theft, because between a son in power and his father, or between a slave and his master, no action will lie on any ground whatsoever. but if the offender is aided and abetted by a third person, the latter is liable to an action on theft, because a theft has in fact been committed, and by his aid and abetment. the action on theft will lie at the suit of any person interested in the security of the property, even though he be not its owner: indeed, even the owner cannot maintain the action unless he suffers damage from the loss. hence, when a pawn is stolen the pawnee can sue, even though his debtor be perfectly able to pay the debt; for it is more advantageous to him to rely on the pledge, than to bring a personal action: and this rule is so unbending that even the pawnor who steals a pawn is suable for theft by the pawnee. so, if clothes are delivered to be cleaned or finished or mended for a certain remuneration, and then are stolen, it is the fuller or tailor who can sue on the theft, and not the owner; for the owner suffers nothing by the loss, having the action of letting against the fuller or tailor for the recovery of his property. similarly a purchaser in good faith, even though a good title as owner is not given to him, can bring the action of theft if the property is stolen, exactly like the pawnee. the action is, however, not maintainable at the suit of a fuller or tailor, unless he is solvent, that is to say, unless he is able to fully indemnify the owner; if he is insolvent, the owner cannot recover from him, and so can maintain an action against the thief, being, on this hypothesis, interested in the recovery of the property. where the fuller or tailor is only partly instead of wholly solvent the rule is the same. the older lawyers held that what has been said of the fuller and tailor applied also to the borrower for use, on the ground that as the remuneration which the fuller receives makes him responsible for custody, so the advantages which the borrower derives from the use requires him to keep it safely at his peril. our wisdom, however, has amended the law in this particular in our decisions, by allowing the owner the option of suing either the borrower by action on the loan, or the thief by action of theft; though when his choice has been determined he cannot change his mind, and resort to the other action. if he prefers to sue the thief, the borrower is absolutely released from liability; but if he proceeds against the borrower, he cannot in any way himself sue the thief on the stealing, though this may be done by the borrower, who is defendant in the other action, provided that the owner knew, at the time when he began his action against the borrower, that the thing had been stolen. if he is ignorant of this, or even if he is merely doubtful whether the borrower still has the property in his possession or not, and sues him on the loan, he may, on subsequently learning the facts, and if he wishes to drop the action which he has commenced, and sue the thief instead, adopt this course, in which case no obstacle is to be thrown in his way, because it was in ignorance that he took action and sued the borrower on the loan. if, however, the owner has been indemnified by the borrower, in no case can he bring the action of theft against the thief, as his rights of action pass to the person who has compensated him for the loss of his property. conversely it is clear, that if, at the outset, the owner began an action on the loan against the borrower, not knowing that the property had been stolen, and subsequently, on learning this, proceeded against the thief instead, the borrower is absolutely released from liability, whatever may be the result of the owner's action against the thief; the rule being the same, whether the borrower be wholly or only partially insolvent. as a depositary is not answerable for the safe keeping of the thing deposited, but only for fraud, and, if it is stolen, is not compellable to make restitution by action of deposit, he has no interest if it is lost, and therefore the action of theft is maintainable only by the depositor. finally, it has been a question whether a child below the age of puberty, who carries away the property of another, is guilty of theft. the answer is that, as theft depends on intention, obligation by theft is not incurred unless the child is near puberty, and so understands its delinquency. the object of the action on theft, whether it be for double or quadruple the value of the goods stolen, is merely the recovery of the penalty; to recover the goods themselves or their value the owner has an independent remedy by vindication or condiction. the former is the proper remedy when it is known who is in possession of the goods, whether this be the thief or any one else: the latter lies against the thief or his heir, whether in possession of the stolen property or not. title ii. of robbery robbery is chargeable also as theft; for who deals with the property of another more against that other's will than the robber? and thus the description of the robber as an audacious thief is a good one. however, as a special remedy for this offence the praetor has introduced the action for robbery, or rapine with violence, which may be brought within a year for four times the value, after a year for simple damages, and while lies even when only a single thing of the slightest value has been taken with violence. this fourfold value, however, is not all penalty, nor is there an independent action for the recovery of the property or its value, as we observed was the case in the action of theft detected in the commission; but the thing or its value is included in the fourfold, so that, in point of fact, the penalty is three times the value of the property, and this whether the robber be taken in the act or not; for it would be absurd to treat a robber more lightly than one who carries off property merely secretly. this action is maintainable only where the robbery is attended with wrongful intention; consequently, if a man by mistake thought that property was his own, and, in his ignorance of law, forcibly carried it off in the belief that it was lawful for an owner to take away, even by force, a thing belonging to himself from a person in whose possession it was, he cannot be held liable to this action; and similarly on principle he would not in such a case be suable for theft. lest, however, robbers, under the cloak of such a plea, should discover a method of gratifying a grasping habit with impunity, the law has been amended upon this point by imperial constitutions, by which it is enacted that it shall not be lawful for any one to forcibly carry off movable property, inanimate or animate, even though he believe it to belong to him; and that whosoever disobeys this shall forfeit the property, if, in fact, it be his, and if it be not, shall restore it, and along with it its value in money. and by the said constitutions it is also declared that this provision relates not only to movables (of which alone robbery can be committed), but also to forcible entries on land and houses, so as to deter men from all violent seizing upon property whatsoever under the cloak of such excuses. in order to support this action it is not necessary that the goods of which robbery has been committed should belong to the plaintiff, provided they were taken from among his property. thus, if a thing be let, or lent, or pledged to titius, or even deposited with him under such circumstances that he has an interest in its not being carried off--for instance, by his having undertaken the entire responsibility for its safe custody;--or if he possesses it in good faith, or has a usufruct or any other right in it whereby he suffers loss or incurs liability through its being forcibly taken from him, the action will be maintainable by him; not necessarily in order to restore to him the ownership, but only to compensate him for what it is alleged he has lost by its being taken from his goods or withdrawn from his means. in fact, it may be said generally that where, supposing property to be taken secretly, the action of theft will lie, the action on robbery will lie at suit of the same person, if it be taken with violence. title iii. of the lex aquilia unlawful damage is actionable under the lex aquilia, whose first chapter provides that if a slave of another man, or a quadruped from his flocks or herds, be unlawfully killed, the offender shall pay to the owner whatever was the highest value thereof within the year next immediately preceding. from the fact that this enactment does not speak of quadrupeds simply, but only of such quadrupeds as are usually included under the idea of flocks and herds, it is to be inferred that it has no application to wild animals or to dogs, but only to such beasts as can properly be said to graze in herds, namely horses, mules, asses, oxen, sheep, and goats. it is settled, too, that swine come under its operation, for they are comprehended in 'herds' because they feed in this manner; thus homer in his odyssey, as quote by aelius marcianus in his institutes, says, you will find him sitting among his swine, and they are feeding by the rock of corax, over against the spring arethusa.' to kill unlawfully is to kill without any right; thus a man who kills a robber is not liable to this action, if he could in no other way escape the danger by which he was threatened. so, too, where one man kills another by misadventure, he is not liable under this statute, provided there is no fault or carelessness on his part; otherwise it is different, for under this statute carelessness is as punishable as wilful wrongdoing. accordingly, if a man, while playing or practising with javelins, runs your slave through as he passes by, a distinction is drawn. if it be done by a soldier in his exercising ground, that is to say, where such practice is usually conducted, he is in no way to blame; but if it be done by some one else, his carelessness will make him liable; and so it is with the soldier, if he do it in some place other than that appropriated to military exercises. so, too, if a man is trimming a tree, and kills your slave as he passes by with a bough which he lets fall, he is guilty of negligence, if it is near a public way, or a private path belonging to a neighbour, and he does not call out to give people warning; but if he calls out, and the slave takes no pains to get out of the way, he is not to blame. nor would such a man be liable, if he was cutting a tree far away from a road, or in the middle of a field, even if he did not call out; for strangers had no business to be there. again, if a surgeon operates on your slave, and then neglects altogether to attend to his cure, so that the slave dies in consequence, he is liable for his carelessness. sometimes, too, unskilfulness is undistinguishable from carelessness--as where a surgeon kills your slave by operating upon him unskilfully, or by giving him wrong medicines; and similarly, if your slave is run over by a team of mules, which the driver has not enough skill to hold, the latter is suable for carelessness; and the case is the same if he was simply not strong enough to hold them, provided they could have been held by a stronger man. the rule also applies to runaway horses, if the running away is due to the rider's deficiency either in skill or strength. the meaning of the words of the statute 'whatever was of the highest value thereof within the year' is that if any one, for instance, kills a slave of yours, who at the moment of his death is lame, or maimed, or blind of one eye, but within the year was sound and worth a price, the person who kills him is answerable not merely for his value at the time of his death, but for his highest value within the year. it is owing to this that the action under this statute is deemed to be penal, because a defendant is sometimes bound to pay a sum not merely equivalent to the damage he has done, but far in excess of it; and consequently, the right of suing under the statute does not pass against the heir, though it would have done so if the damages awarded had never exceeded the actual loss sustained by the plaintiff. by juristic construction of the statute, though not so enacted in its terms, it has been settled that one must not only take account, in the way we have described, of the value of the body of the slave or animal killed, but must also consider all other loss which indirectly falls upon the plaintiff through the killing. for instance, if your slave has been instituted somebody's heir, and, before he has by your order accepted, he is slain, the value of the inheritance you have missed must be taken into consideration; and so, too, if one of a pair of mules, or one of four chariot horses, or one of a company of slave players is killed, account is to be taken not only of what is killed, but also of the extent to which the others have been depreciated. the owner whose slave is killed has the option of suing the wrongdoer for damages in a private action under the lex aquilia, or of accusing him on a capital charge by indictment. the second chapter of the lex aquilia is now obsolete; the third makes provision for all damage which is not covered by the first. accordingly, if a slave or some quadruped which comes within its terms, is wounded, or if a quadruped which does not come within its terms, such as a dog or wild animal, is wounded or killed, an action is provided by this chapter; and if any other animal or inanimate thing is unlawfully damaged, a remedy is herein afforded; for all burning, breaking, and crushing is hereby made actionable, though, indeed, the single word 'breaking' covers all these offences, denoting as it does every kind of injury, so that not only crushing and burning, but any cutting, bruising, spilling, destroying, or deteriorating is hereby denominated. finally, it has been decided that if one man mixes something with another's win or oil, so as to spoil its natural goodness, he is liable under this chapter of the statute. it is obvious that, as a man is liable under the first chapter only where a slave or quadruped is killed by express design or through negligence on his part, so, too, he is answerable for all other damage under this chapter only where it results from some wilful act or carelessness of his. under this chapter, however, it is not the highest value which the thing had within a year, but that which it had within the last thirty days, which is chargeable on the author of the mischief. it is true that here the statute does not expressly say 'the highest value,' but sabinus rightly held that the damages must be assessed as if the words 'highest value' occurred also in this chapter; the roman people, who enacted this statute on the proposal of aquilius the tribune, having thought it sufficient to use them in the first chapter only. it is held that a direct action lies under this statute only when the body of the offender is substantially the instrument of mischief. if a man occasions loss to another in any other way, a modified action will usually lie against him; for instance, if he shuts up another man's slave or quadruped, so as to starve him or it to death, or drives his horse so hard as to knock him to pieces, or drives his cattle over a precipice, or persuades his slave to climb a tree or go down a well, who, in climbing the one or going down the other, is killed or injured in any part of his body, a modified action is in all these cases given against him. but if a slave is pushed off a bridge or bank into a river, and there drowned, it is clear from the facts that the damage is substantially done by the body of the offender, who is consequently liable directly under the lex aquilia. if damage be done, not by the body or to a body, but in some other form, neither the direct nor the modified aquilian action will lie, though it is held that the wrongdoer is liable to an action on the case; as, for instance, where a man is moved by pity to loose another's slave from his fetters, and so enables him to escape. title iv. of injuries by injury, in a general sense, is meant anything which is done without any right. besides this, it has three special significations; for sometimes it is used to express outrage, the proper word for which--contumely--is derived from the verb 'to contemn,' and so is equivalent to the greek 'ubris': sometimes it means culpable negligence, as where damage is said to be done (as in the lex aquilia) 'with injury,' where it is equivalent to the greek 'adikema'; and sometimes iniquity and injustice, which the greeks express by 'adikia'; thus a litigant is said to have received an 'injury' when the praetor or judge delivers an unjust judgement against him. an injury or outrage is inflicted not only by striking with the first, a stick, or a whip, but also by vituperation for the purpose of collecting a crowd, or by taking possession of a man's effects on the ground that he was in one's debt; or by writing, composing, or publishing defamatory prose or verse, or contriving the doing of any of these things by some one else; or by constantly following a matron, or a young boy or girl below the age of puberty, or attempting anybody's chastity; and, in a word, by innumerable other acts. an outrage or injury may be suffered either in one's own person, or in the person of a child in one's power, or even, as now is generally allowed, in that of one's wife. accordingly, if you commit an 'outrage' on a woman who is married to titius, you can be sued not only in her own name, but also in those of her father, if she be in his power, and of her husband. but if, conversely, it be the husband who is outraged, the wife cannot sue; for wives should be protected by their husbands, not husbands by their wives. finally, a father-in-law may sue on an outrage committed on his daughterinlaw, if the son to whom she is married is in his power. slaves cannot be outraged themselves, but their master may be outraged in their person, though not by all the acts by which an outrage might be offered to him in the person of a child or wife, but only by aggravated assaults or such insulting acts as clearly tend to dishonour the master himself: for instance, by flogging the slave, for which an action lies; but for mere verbal abuse of a slave, or for striking him with the fist, the master cannot sue. if an outrage is committed on a slave owned by two or more persons jointly, the damages to be paid to these severally should be assessed with reference not to the shares in which they own him, but to their rank or position, as it is to the reputation and not to the property that the injury is done; and if an outrage is committed on a slave belonging to maevius, but in whom titius has a usufruct, the injury is deemed to be done to the former rather than to the latter. but if the person outraged is a free man who believes himself to be your slave, you have no action unless the object of the outrage was to bring you into contempt, though he can sue in his own name. the principle is the same when another man's slave believes himself to belong to you; you can sue on an outrage committed on him only when its object is to bring contempt upon you. the penalty prescribed for outrage in the twelve tables was, for a limb disabled, retaliation, for a bone merely broken a pecuniary mulct proportionate to the great poverty of the age. the praetors, however, subsequently allowed the person outraged to put his own estimate on the wrong, the judge having a discretion to condemn the defendant either in the sum so named by the plaintiff, or in a less amount; and of these two kinds of penalties that fixed by the twelve tables is now obsolete, while that introduced by the praetors, which is also called 'honorary,' is most usual in the actual practice of the courts. thus the pecuniary compensation awarded for an outrage rises and falls in amount according to the rank and character of the plaintiff, and this principle is not improperly followed even where it is a slave who is outraged; the penalty where the slave is a steward being different from what it is when he is an ordinary menial, and different again when he is condemned to wear fetters. the lex cornelia also contains provisions as to outrages, and introduced an action on outrage, available to a plaintiff who alleges that he has been struck or beaten, or that a forcible entry has been made upon his house; the term 'his house' including not only one which belongs to him and in which he lives but also one which is hired by him, or in which he is received gratuitously as a guest. an outrage becomes 'aggravated' either from the atrocious character of the act, as where a man is wounded or beaten with clubs by another; or from the place where it is committed, for instance, in the theatre or forum, or in full sight of the praetor; or from the rank of the person outraged,--if it be a magistrate, for instance, or if a senator be outraged by a person of low condition, or a parent by his child, or a patron by his freedman; for such an injury done to a senator, a parent, or a patron has a higher pecuniary compensation awarded for it than one done to a mere stranger, or to a person of low condition. sometimes too the position of the wound makes an outrage aggravated, as where a man is struck in the eye. whether the person on whom such an outrage is inflicted is independent or in the power of another is almost entirely immaterial, it being considered aggravated in either case. finally, it should be observed that a person who has been outraged always has his option between the civil remedy and a criminal indictment. if he prefers the former, the penalty which is imposed depends, as we have said, on the plaintiff's own estimate of the wrong he has suffered; if the latter, it is the judge's duty to inflict an extraordinary penalty on the offender. it should be remembered, however, that by a constitution of zeno persons of illustrious or still higher rank may bring or defend such criminal actions on outrage by an agent, provided they comply with the requirements of the constitution, as may be more clearly ascertained by a perusal of the same. liability to an action on outrages attaches not only to him who commits the act,--the striking of a blow, for instance--but also to those who maliciously counsel or abet in the commission, as, for instance, to a man who gets another struck in the face. the right of action on outrage is lost by condonation; thus, if a man be outraged, and takes no steps to obtain redress, but at once lets the matter, as it is said, slip out of his mind, he cannot subsequently alter his intentions, and resuscitate an affront which he has once allowed to rest. title v. of quasi-delictal obligations the obligation incurred by a judge who delivers an unjust or partial decision cannot properly be called delictal, and yet it does not arise from contract; consequently, as he cannot but be held to have done a wrong, even though it may be due to ignorance, his liability would seem to be quasidelictal, and a pecuniary penalty will be imposed on him at the judge's discretion. another case of quasidelictal obligation is that of a person from whose residence, whether it be his own, or rented, or gratuitously lent him, anything is thrown or poured out whereby another is injured; the reason why his liability cannot properly be called delictal being that it is usually incurred through the fault of some other person, such as a slave or freedman. of a similar character is the obligation of one who keeps something placed or hung over a public way, which might fall and injure any one. in this last case the penalty has been fixed at ten aurei; in that of things thrown or poured out of a dwelling-house the action is for damages equivalent to double the loss sustained, though if a free man be thereby killed the penalty is fixed at fifty aurei, and even if he be merely injured he can sue for such damages as the judge shall in his discretion award; and here the latter should take into account the medical and other expenses of the plaintiff's illness, as well as the loss which he has sustained through being disabled from work. if a son in power lives apart from his father, and anything is thrown or poured out of his place of residence, or if he has anything so placed or hung as to be dangerous to the public, it is the opinion of julian that no action lies against the father, but that the son should be made sole defendant; and the same principle should be applied to a son in power who is made a judge, and delivers an unjust or partial decision. similarly shipowners, inn and stable keepers are liable as on a quasi-delict for wilful damage or theft committed in their ships, inns, or stables, provided the act be done by some or one of their servants there employed, and not by themselves; for the action which is given in such cases is not based on contract, and yet as they are in some sense at fault for employing careless or dishonest servants, their liability would seem to be quasidelictal. in such circumstances the action which is given is on the case, and lies at suit of the injured person's heir, though not against the heir of the shipowner, inn or stable keeper. title vi. of actions the subject of actions still remains for discussion. an action is nothing else than the right of suing before a judge for what is due to one. the leading division of all actions whatsoever, whether tried before a judge or a referee, is into two kinds, real and personal; that is to say, the defendant is either under a contractual or delictal obligation to the plaintiff, in which case the action is personal, and the plaintiff's contention is that the defendant ought to convey something to, or do something for him, or of a similar nature; or else, though there is no legal obligation between the parties, the plaintiff asserts a ground of action against some one else relating to some thing, in which case the action is real. thus, a man may be in possession of some corporeal thing, in which titius claims a right of property, and which the possessor affirms belongs to him; here, if titius sues for its recovery, the action is real. it is real also if a man asserts that he has a right of usufruct over a landed estate or a house, or a right of going or driving cattle over his neighbour's land, or of drawing water from the same; and so too are the actions relating to urban servitudes, as, for instance, where a man asserts a right to raise his house, to have an uninterrupted prospect, to project some building over his neighbour's land, or to rest the beams of his own house on his neighbour's wall. conversely, there are actions relating to usufructs, and to rustic and urban servitudes, of a contrary import, which lie at the suit of plaintiffs who deny their opponent's right of usufruct, of going or driving cattle, of drawing water, of raising their house, or having an uninterrupted view, of projecting some building over the plaintiff's land, or of resting the beams of their house in the plaintiff's wall. these actions too are real, but negative, and never occur in disputes as to corporeal things, in which the plaintiff is always the party out of possession; and there is no action by which the possessor can (as plaintiff) deny that the thing in question belongs to his adversary, except in one case only, as to which all requisite information can be gathered from the fuller books of the digest. the actions which have hitherto been mentioned, and others which resemble them, are either of statutory origin, or at any rate belong to the civil law. there are other actions, however, both real and personal, which the praetor has introduced in virtue of his jurisdiction, and of which it is necessary to give examples. for instance, he will usually, under the circumstances to be mentioned, allow a real action to be brought with a fictitious allegation--namely, that the plaintiff has acquired a title by usucapion where this, in fact, is not the case; or, conversely, he will allow a fictitious plea on the part of the defendant, to the effect that the plaintiff has not acquired such a title where, in point of fact, he has. thus, if possession of some object be delivered on a ground sufficient to legally transfer the same--for instance, under a sale or gift, as part of a dowry, or as a legacy--and the transferee has not yet acquired a complete title by usucapion, he has no direct real action for its recovery, if he accidentally loses possession, because by the civil law a real action lies at the suit of the owner only. but as it seemed hard that in such a case there should be no remedy, the praetor introduced an action in which the plaintiff, who has lost possession, fictitiously allege that he has acquired a full title by usucapion, and thus claims the thing as his own. this is called the publician action, because it was first placed in the edict by a praetor called publicius. conversely, if a person, while absent in the service of the state, or while in the power of an enemy, acquires by usucapion property belonging to some one resident at home, the latter is allowed, within a year from the cessation of the possessor's public employment, to sue for a recovery of the property by a rescission of the usucapion: by fictitiously alleging, in other words, that the defendant has not thus acquired it; and the praetor from motives of equity allows this kind of action to be brought in certain other cases, as to which information may be gathered from the larger work of the digest or pandects. similarly, if a person conveys away his property in fraud of creditors, the latter, on obtaining from the governor of the province a decree vesting in them possession of the debtor's estate, are allowed to avoid the conveyance, and sue for the recovery of the property; in other words, to allege that the conveyance has never taken place, and that the property consequently still belongs to the debtor. again, the servian and quasi-servian actions, the latter of which is also called 'hypothecary,' are derived merely from the praetor's jurisdiction. the servian action is that by which a landlord sues for his tenant's property, over which he has a right in the nature of mortgage as security for his rent; the quasi-servian is a similar remedy, open to every pledgee or hypothecary creditor. so far then as this action is concerned, there is no difference between a pledge and a hypothec: and indeed whenever a debtor and a creditor agree that certain property of the former shall be the latter's security for his debt, the transaction is called a pledge or a hypothec indifferently. in other points, however, there is a distinction between them; for the term 'pledge' is properly used only where possession of the property in question is delivered to the creditor, especially if that property be movable: while a hypothec is, strictly speaking, such a right created by mere agreement without delivery of possession. besides these, there are also personal actions which the praetor has introduced in virtue of his jurisdiction, for instance, that brought to enforce payment of money already owed, and the action on a banker's acceptance, which closely resembled it. by our constitution, however, the first of these actions has been endowed with all the advantages which belonged to the second, and the latter, as superfluous, has therefore been deprived of all force and expunged from our legislation. to the praetor is due also the action claiming an account of the peculium of a slave or child in power, that in which the issue is whether a plaintiff has made oath, and many others. the action brought to enforce payment of money already owed is the proper remedy against a person who, by a mere promise, without stipulation, has engaged to discharge a debt due either from himself or from some third party. if he has promised by stipulation, he is liable by the civil law. the action claiming an account of a peculium is a remedy introduced by the praetor against a master or a father. by strict law, such persons incur no liability on the contracts of their slaves or children in power; yet it is only equitable that damages should still be recoverable against them to the extent of the peculium, in which children in power and slaves have a sort of property. again, if a plaintiff, on being challenged by the defendant, deposes on oath that the latter owes him the money which is the object of the action, and payment is not made to him, the praetor most justly grants to him an action in which the issue is, not whether the money is owing, but whether the plaintiff has sworn to the debt. there is also a considerable number of penal actions which the praetor has introduced in the exercise of his jurisdiction; for instance, against those who in any way injure or deface his album; or who summon a parent or patron without magisterial sanction; or who violently rescue persons summoned before himself, or who compass such a rescue; and others innumerable. 'prejudicial' actions would seem to be real, and may be exemplified by those in which it is inquired whether a man is free born, or has become free by manumission, or in which the question relates to a child's paternity. of these the first alone belongs to the civil law: the others are derived from the praetor's jurisdiction. the kinds of action having been thus distinguished, it is clear that a plaintiff cannot demand his property from another in the form 'if it be proved that the defendant is bound to convey.' it cannot be said that what already belongs to the plaintiff ought to be conveyed to him, for conveyance transfers ownership, and what is his cannot be made more his than it is already. yet for the prevention of theft, and multiplication of remedies against the thief, it has been provided that, besides the penalty of twice or four times the value of the property stolen, the property itself, or its value, may be recovered from the thief by a personal action in the form 'if it be proved that the defendant ought to convey,' as an alternative for the real action which is also available to the plaintiff, and in which he asserts his ownership of the stolen property. we call a real action a 'vindication,' and a personal action, in which the contention is that some property should be conveyed to us, or some service performed for us, a 'condiction,' this term being derived from condicere, which has an old meaning of 'giving notice.' to call a personal action, in which the plaintiff contends that the defendant ought to convey to him, a condiction, is in reality an abuse of the term, for nowadays there is no such notice as was given in the old action of that name. actions may be divided into those which are purely reparative, those which are purely penal, and those which are mixed, or partly reparative, partly penal. all real actions are purely reparative. of personal actions those which spring from contract are nearly all of the same character; for instance, the actions on loans of money, or stipulations, on loans for use, on deposit, agency, partnership, sale, and hire. if, however, the action be on a deposit occasioned by a riot, a fire, the fall of a building, or a shipwreck, the praetor enables the depositor to recover double damages, provided he sues the bailee in person; he cannot recover double damages from the bailee's heir, unless he can prove personal fraud against the latter. in these two cases the action, though on contract, is mixed. actions arising from delict are sometimes purely penal, sometimes are partly penal and partly reparative, and consequently mixed. the sole object of the action of theft is the recovery of a penalty, whether that penalty be four times the value of the property stolen, as in theft detected in the commission, or only twice that value, as in simple theft. the property itself is recoverable by an independent action in which the person from whom it has been stolen claims it as his own, whether it be in the possession of the thief himself or of some third person; and against the thief himself he may even bring a condiction, to recover the property or its value. the action on robbery is mixed, for the damages recoverable thereunder are four times the value of the property taken, threefourths being pure penalty, and the remaining fourth compensation for the loss which the plaintiff has sustained. so too the action on unlawful damage under the lex aquilia is mixed, not only where the defendant denies his liability, and so is sued for double damages, but also sometimes where the claim is for simple damages only; as where a lame or one-eyed slave is killed, who within the year previous was sound and of large value; in which case the defendant is condemned to pay his greatest value within the year, according to the distinction which has been drawn above. persons too who are under an obligation as heirs to pay legacies or trust bequests to our holy churches or other venerable places, and neglect to do so until sued by the legatee, are liable to a mixed action, by which they are compelled to give the thing or pay the money left by the deceased, and, in addition, an equivalent thing or sum as penalty, the condemnation being thus in twice the value of the original claim. some actions are mixed in a different sense, being partly real, partly personal. they are exemplified by the action for the division of a 'family,' by which one of two or more joint heirs can enforce against the other or rest a partition of the inheritance, and by the actions for the division of common property, and for rectification of boundaries between adjoining landed proprietors. in these three actions the judge has power, according as shall to him seem fair and equitable, to adjudge any part of the joint property, or of the land in dispute, to any one of the parties, and to order any one of them who seems to have an undue advantage in the partition or rectification to pay a certain sum of money to the other or the rest as compensation. the damages recoverable in an action may be either once, twice, three, or four times the value of the plaintiff's original interest; there is no action by which more than fourfold damages can be claimed. single damages only are recoverable in the actions on stipulation, loan for consumption, sale, hire, agency, and many others besides. actions claiming double damages are exemplified by those on simple theft, on unlawful damage under the lex aquilia, on certain kinds of deposit, and for corruption of a slave, which lies against any one by whose instigation and advice another man's slave runs away, or becomes disobedient to his master, or takes to dissolute habits, or becomes worse in any way whatsoever, and in which the value of property which the runaway slave has carried off is taken into account. finally, as we remarked above, the action for the recovery of legacies left to places of religion is of this character. an action for triple damages is grounded when a plaintiff makes an overstatement of his claim in the writ of summons, in consequence of which the officers of the court take too large a fee from the defendant. in such a case the latter will be able to recover from the plaintiff three times the loss which he sustains by the overcharge, including in these damages simple compensation for the sum paid in excess of the proper fee. this is provided by a distinguished constitution in our code, under which a statutory condiction clearly lies for the damages in question. quadruple damages are recoverable by the action on theft detected in the commission, by the action on intimidation, and by the action grounded on the giving of money in order to induce one man to bring a vexatious suit against another, or to desist from a suit when brought. under our constitution too a statutory condiction lies for the recovery of fourfold damages from officers of the court, who exact money from defendants in excess of its provisions. there is this difference between the actions on simple theft and for the corruption of a slave, and the other of which we spoke in connexion with them, that by the two former double damages are recoverable under any circumstances; the latter, namely the action on unlawful damage under the lex aquilia, and that on certain kinds of deposit, entail double damages on the defendant only if he denies his liability; if he admits it, simple damages alone can be recovered. the damages are double under an action for recovery of legacies left to religious places not only when the liability is denied, but also when the defendant delays payment until sued by the order of a magistrate; if he admits his liability, and pays before being so sued, he cannot be compelled to pay more than the original debt. the action on intimidation also differs from the others which we mentioned in the same connexion, in that it contains in its very nature an implied condition that the defendant is entitled to acquittal if, on being so ordered by the judge, he restores to the plaintiff the property of which the latter has been deprived. in other actions of the same class this is not so; for instance, in the action on theft detected in the commission, the defendant has under any circumstances to pay fourfold damages. again, some actions are equitable, others are actions of strict law. to the former class belong the actions on sale, hire, unauthorised agency, agency proper, deposit, partnership, guardianship, loan for use, mortgage, division of a 'family,' partition of joint property, those on the innominate contracts of sale by commission and exchange, and the suit for recovery of an inheritance. until quite recently it was a moot point whether the lastnamed was properly an equitable action, but our constitution has definitely decided the question in the affirmative. formerly too the action for the recovery of a dowry was an equitable action: but as we found that the action on stipulation was more convenient, we have, while establishing many distinctions, attached all the advantages which the former remedy possessed to the action on stipulation, when employed for the recovery of a dowry. the former action being thus by a judicious reform abolished, that on stipulation, by which it has been replaced, has deservedly been invested with all the characteristics of an equitable action, so far as and whenever it is brought for the recovery of a dowry. we have also given persons entitled to sue for such recovery a tacit hypothec over the husband's property, but this right is not to give any priority over other hypothecary creditors except where it is the wife herself who sues to recover her dowry; it being in her interest only that we have made this new provision. in equitable actions the judge has full power to assess on good and fair grounds the amount due to the plaintiff, and in so doing to take into account counterclaims of the defendant, condemning the latter only in the balance. even in actions of strict law counterclaims have been permitted since a rescript of the emperor marcus, the defendant meeting the plaintiff's claim by a plea of fraud. by our constitution, however, a wider field has been given to the principle of setoff, when the counterclaim is clearly established, the amount claimed in the plaintiff's action, whether real or personal, or whatever its nature, being reduced by operation of law to the extent of the defendant's counterclaim. the only exception to this rule is the action on deposit, against which we have deemed it no less than dishonest to allow any counterclaim to be set up; for if this were permitted persons might be fraudulently prevented from recovering property deposited under the pretence of a setoff. there are some actions again which we call arbitrary, because their issue depends on an 'arbitrium' or order of the judge. here, unless on such order the defendant satisfies the plaintiff's claim by restoring or producing the property, or by performing his obligation, or in a noxal action by surrendering the guilty slave, he ought to be condemned. some of such actions are real, others personal. the former are exemplified by the publician action, the servian action for the recovery of a tenant farmer's stock, and the quasi-servian or socalled hypothecary action; the latter by the actions on intimidation and on fraud, by that for the recovery of a thing promised at a particular place, and by the action claiming production of property. in all these actions, and others of a similar nature, the judge has full power to determine on good and just grounds, according to the circumstances of each particular case, the form in which reparation ought to be made to the plaintiff. it is the judge's duty, in delivering judgement, to make his award as definite as possible, whether it relate to the payment of money or the delivery of property, and this even when the plaintiff's claim is altogether unliquidated. formerly, if the plaintiff, in his statement of claim, demanded more than he was entitled to, his case fell to the ground, that is, he lost even that which was his due, and in such cases the praetor usually declined to restore him to his previous position, unless he was a minor; for in this matter too the general rule was observed of giving relief to minors after inquiry made, if it were proved that they had made an error owing to their lack of years. if, however, the mistake was entirely justifiable, and such as to have possibly misled even the discreetest of men, relief was afforded even to persons of full age, as in the case of a man who sues for the whole of a legacy, of which part is found to have been taken away by codicils subsequently discovered; or where such subsequently discovered codicils give legacies to other persons, so that, the total amount given in legacies being reduced under the lex falcidia, the first legatee is found to have claimed more than the threefourths allowed by that statute. overstatement of claim takes four forms; that is, it may relate either to the object, the time, the place, or the specification. a plaintiff makes an overclaim in the object when, for instance, he sues for twenty aurei while only ten are owing to him, or when, being only part owner of property, he sues to recover the whole or a greater portion of it than he is entitled to. overclaim in respect of time occurs when a man sues for money before the day fixed for payment, or before the fulfilment of a condition on which payment was dependent; for exactly as one who pays money only after it falls due is held to pay less than his just debt, so one who makes his demand prematurely is held to make an overclaim. overclaim in respect of place is exemplified by a man suing at one place for performance of a promise which it was expressly agreed was to be performed at another, without any reference, in his claim, to the latter: as, for instance, if a man, after stipulating thus, 'do you promise to pay at ephesus?' were to claim the money as due at rome, without any addition as to ephesus. this is an overclaim, because by alleging that the money is due at rome simply, the plaintiff deprives his debtor of the advantage he might have derived from paying at ephesus. on this account an arbitrary action is given to a plaintiff who sues at a place other than that agreed upon for payment, in which the advantage which the debtor might have had in paying at the latter is taken into consideration, and which usually is greatest in connexion with commodities which vary in price from district to district, such as wine, oil, or grain; indeed even the interest on loans of money is different in different places. if, however, a plaintiff sues at ephesus--that is, in our example, at the place agreed upon for the payment--he need do no more than simply allege the debt, as the praetor too points out, because the debtor has all the advantage which payment in that particular place gives him. overclaim in respect of specification closely resembles overclaim in respect of place, and may be exemplified by a man's stipulating from you 'do you promise to convey stichus or ten aurei?' and then suing for the one or the other--that is to say, either for the slave only, or for the money only. the reason why this is an overclaim is that in stipulations of this sort it is the promisor who has the election, and who may give the slave or the money, whichever he prefers; consequently if the promisee sues, alleging that either the money alone, or the slave alone, ought to be conveyed to him, he deprives his adversary of his election, and thereby puts him in a worse position, while he himself acquires an undue advantage. other cases of this form of overclaim occur where a man, having stipulated in general terms for a slave, for wine, or for purple, sues for the particular slave stichus, or for the particular wine of campania, or for tyrian purple; for in all of these instances he deprives his adversary of his election, who was entitled, under the terms of the stipulation, to discharge his obligation in a mode other than that which is required of him. and even though the specific thing for which the promisee sues be of little or no value, it is still an overclaim: for it is often easier for a debtor to pay what is of greater value than what is actually demanded of him. such were the rules of the older law, which, however, has been made more liberal by our own and zeno's statutes. where the overclaim relates to time, the constitution of zeno prescribes the proper procedure; if it relates to quantity, or assumes any other form, the plaintiff, as we have remarked above, is to be condemned in a sum equivalent to three times any loss which the defendant may have sustained thereby. if the plaintiff in his statement of claim demands less than is his due, as for instance by alleging a debt of five aurei, when in fact he is owed ten, or by claiming only half of an estate the whole of which really belongs to him, he runs no risk thereby, for, by the constitution of zeno of sacred memory, the judge will in the same action condemn the defendant in the residue as well as in the amount actually claimed. if he demands the wrong thing in his statement of claim, the rule is that he runs no risk; for if he discovers his mistake, we allow him to set it right in the same action. for instance, a plaintiff who is entitled to the slave stichus may claim eros; or he may allege that he is entitled to a conveyance under a will, when his right is founded in reality upon a stipulation. there are again some actions in which we do not always recover the whole of what is due to us, but in which we sometimes get the whole, sometimes only part. for instance, if the fund to which our claim looks for satisfaction be the peculium of a son in power or a slave, and it is sufficient in amount to meet that claim, the father or master is condemned to pay the whole debt; but if it is not sufficient, the judge condemns him to pay only so far as it will go. of the mode of ascertaining the amount of a peculium we will speak in its proper place. so too if a woman sues for the recovery of her dowry, the rule is that the husband is to be condemned to restore it only so far as he is able, that is, so far as his means permit. accordingly, if his means will enable him to restore the dowry in full, he will be condemned to do so; if not, he will be condemned to pay only so much as he is able. the amount of the wife's claim is also usually lessened by the husband's right of retaining some portion for himself, which he may do to the extent of any outlay he has made on dowry property, according to the rule, stated in the larger work of the digest, that a dowry is diminished by operation of law to the extent of all necessary outlay thereon. again, if a man goes to law with his parent or patron, or if one partner brings an action of partnership against another, he cannot get judgement for more than his adversary is able to pay. the rule is the same when a man is sued on a mere promise to give a present. very often too a plaintiff obtains judgement for less than he was owed through the defendant's pleading a setoff: for, as has already been observed, the judge, acting on equitable principles, would in such a case take into account the cross demand in the same transaction of the defendant, and condemn him only in the residue. so too if an insolvent person, who surrenders all his effects to his creditors, acquires fresh property of sufficient amount to justify such a step, his creditors may sue him afresh, and compel him to satisfy the residue of their claims so far as he is able, but not to give up all that he has; for it would be inhuman to condemn a man to pay his debts in full who has already been once deprived of all his means. title vii. of contracts made with persons in power as we have already mentioned the action in respect of the peculium of children in power and slaves, we must now explain it more fully, and with it the other actions by which fathers and masters are sued for the debts of their sons or slaves. whether the contract be made with a slave or with a child in power, the rules to be applied are much the same; and therefore, to make our statements as short as possible, we will speak only of slaves and masters, premising that what we say of them is true also of children and the parents in whose power they are; where the treatment of the latter differs from that of the former, we will point out the divergence. if a slave enters into a contract at the bidding of his master, the praetor allows the latter to be sued for the whole amount: for it is on his credit that the other party relies in making the contract. on the same principle the praetor grants two other actions, in which the whole amount due may be sued for; that called exercitoria, to recover the debt of a shipmaster, and that called institoria, to recover the debt of a manager or factor. the former lies against a master who has appointed a slave to be captain of a ship, to recover a debt incurred by the slave in his character of captain, and it is called exercitoria, because the person to whom the daily profits of a ship belong is termed an exercitor. the latter lies against a man who has appointed a slave to manage a shop or business, to recover any debt incurred in that business; it is called institoria, because a person appointed to manage a business is termed an institor. and these actions are granted by the praetor even if the person whom one sets over a ship, a shop, or any other business, be a free man or another man's slave, because equity requires their application in these latter cases no less than in the former. another action of the praetor's introduction is that called tributoria. if a slave, with the knowledge of his master, devotes his peculium to a trade or business, the rule which the praetor follows, in respect of contracts made in the course of such trade or business, is that the peculium so invested and its profits shall be divided between the master, if anything is due to him, and the other creditors in the ratio of their claims. the distribution of these assets is left to the master, subject to this provision, that any creditor who complains of having received less than his proper share can bring this action against him for an account. there is also an action in respect of peculium and of what has been converted to the uses of the master, under which, if a debt has been contracted by a slave without the consent of his master, and some portion thereof has been converted to his uses, he is liable to that extent, while if no portion has been so converted, he is liable to the extent of the slave's peculium. conversion to his uses is any necessary expenditure on his account, as repayment to his creditors of money borrowed, repair of his falling house, purchase of corn for his slaves, or of an estate for him, or any other necessary. thus, if out of ten aurei which your slave borrows from titius, he pays your creditor five, and spends the remainder in some other way, you are liable for the whole of the five, and for the remainder to the extent of the peculium: and from this it is clear that if the whole ten were applied to your uses titius could recover the whole from you. thus, though it is but a single action which is brought in respect of peculium and of conversion to uses, it has two condemnatory clauses. the judge by whom the action is tried first looks to see whether there has been any application to the uses of the master, and does not proceed to ascertain the amount of the peculium unless there has been no such application, or a partial application only. in ascertaining the amount of the peculium deduction is first made of what is owed to the master or any person in his power, and the residue only is treated as peculium; though sometimes what a slave owes to a person in his master's power is not deducted, for instance, where that person is another slave who himself belongs to the peculium; thus, where a slave owes a debt to his own vicarial slave, its amount is not deducted from the peculium. there is no doubt that a person with whom a slave enters into a contract at the bidding of his master, or who can sue by the actions exercitoria or institoria, may in lieu thereof bring an action in respect of the peculium and of conversion to uses; but it would be most foolish of him to relinquish an action by which he may with the greatest ease recover the whole of what is owing to him under the contract, and undertake the trouble of proving a conversion to uses, or the existence of a peculium sufficient in amount to cover the whole of the debt. so too a plaintiff who can sue by the action called tributoria may sue in respect of peculium and conversion to uses, and sometimes the one action is the more advisable, sometimes the other. the former has this advantage, that in it the master has no priority; there is no deduction of debts owing to him, but he and the other creditors stand on precisely the same footing; while in the action in respect of peculium deduction is first made of debts owing to the master, who is condemned to pay over to the creditors only what then remains. on the other hand, the advantage of the action in respect of peculium is that in it the slave's whole peculium is liable to his creditors, whereas in the action called tributoria only so much of it is liable as is invested in the trade or business; and this may be only a third, a fourth, or even a less fraction, because the slave may have the rest invested in land or slaves, or out on loan. a creditor ought therefore to select the one or the other action by considering their respective advantages in each particular case; though he certainly ought to choose that in respect of conversion to uses, if he can prove such conversion. what we have said of the liability of a master on the contracts of his slave is equally applicable where the contract is made by a child or grandchild in the power of his or her father or grandfather. a special enactment in favour of children in power is found in the senatusconsult of macedo, which has prohibited the giving of loans of money to such persons, and refused an action to the lender both against the child, whether he be still in power, or has become independent by death of the ancestor or emancipation, and against the parent, whether he still retains the child in his power, or has emancipated him. this enactment was made by the senate because it was found that persons in power, when dragged down by the burden of loans which they had squandered in profligacy, often plotted against the lives of their parents. finally, it should be observed that where a contract has been entered into by a slave or son in power at his master's or parent's bidding, or where there has been a conversion to his uses, a condiction may be brought directly against the parent or master, exactly as if he had been the original contracting party in person. so too, wherever a man is suable by either of the actions called exercitoria and institoria, he may, in lieu thereof, be sued directly by a condiction, because in effect the contract in such cases is made at his bidding. title viii. of noxal actions where a delict, such as theft, robbery, unlawful damages, or outrage, is committed by a slave, a noxal action lies against the master, who on being condemned has the option of paying the damages awarded, or surrendering the slave in satisfaction of the injury. the wrongdoer, that is, the slave, is called 'noxa'; 'noxia' is the term applied to the wrong itself, that is, the theft, damage, robbery, or outrage. this principle of noxal surrender in lieu of paying damages awarded is based on most excellent reason, for it would be unjust that the misdeed of a slave should involve his master in any detriment beyond the loss of his body. if a master is sued by a noxal action on the ground of his slave's delict, he is released from all liability by surrendering the slave in satisfaction of the wrong, and by this surrender his right of ownership is permanently transferred; though if the slave can procure enough money to compensate the surrenderee in full for the wrong he did him, he can, by applying to the praetor, get himself manumitted even against the will of his new master. noxal actions were introduced partly by statute, partly by the edict of the praetor; for theft, by the statute of the twelve tables; for unlawful damages, by the lex aquilia; for outrage and robbery, by the edict. noxal actions always follow the person of the wrongdoer. thus, if your slave does a wrong while in your power, an action lies against you; if he becomes the property of some other person, that other is the proper person to be sued; and if he is manumitted, he becomes directly and personally liable, and the noxal action is extinguished. conversely, a direct action may change into noxal; thus, in an independent person has done a wrong, and then becomes your slave (as he may in several ways described in the first book), a noxal action lies against you in lieu of the direct action which previously lay against the wrongdoer in person. but no action lies for an offence committed by a slave against his master, for between a master and a slave in his power there can be no obligation; consequently, if the slave becomes the property of some other person, or is manumitted, neither he nor his new master can be sued; and on the same principle, if another man's slave commits a wrong against you, and then becomes your property, the action is extinguished, because it has come into a condition in which an action cannot exist; the result being that even if the slave passes again out of your power you cannot sue. similarly, if a master commits a wrong against his slave, the latter cannot sue him after manumission or alienation. these rules were applied by the ancients to wrongs committed by children in power no less than by slaves; but the feeling of modern times has rightly rebelled against such inhumanity, and noxal surrender of children under power has quite gone out of use. who could endure in this way to give up a son, still more a daughter, to another, whereby the father would be exposed to greater anguish in the person of a son than even the latter himself, while mere decency forbids such treatment in the case of a daughter? accordingly, such noxal actions are permitted only where the wrongdoer is a slave, and indeed we find it often laid down by old legal writers that sons in power may be sued personally for their own delicts. title ix. of pauperies, or damage done by quadrupeds a noxal action was granted by the statute of the twelve tables in cases of mischief done through wantonness, passion, or ferocity, by irrational animals; it being by an enactment of that statute provided, that if the owner of such an animal is ready to surrender it as compensation for the damage, he shall thereby be released from all liability. examples of the application of this enactment may be found in kicking by a horse, or goring by a bull, known to be given that way; but the action does not lie unless in causing the damage the animal is acting contrary to its natural disposition; if its nature be to be savage, this remedy is not available. thus, if a bear runs away from its owner, and causes damage, the quondam owner cannot be sued, for immediately with its escape his ownership ceased to exist. the term pauperies, or 'mischief,' is used to denote damage done without there being any wrong in the doer of it, for an unreasoning animal cannot be said to have done a wrong. thus far as to the noxal action. it is, however, to be observed that the edict of the aedile forbids dogs, boars, bears, or lions to be kept near where there is a public road, and directs that if any injury be caused to a free man through disobedience of this provision, the owner of the beast shall be condemned to pay such sum as to the judge shall seem fair and equitable: in case of any other injury the penalty is fixed at double damages. besides this aedilician action, that on pauperies may also be sometimes brought against the same defendant; for when two or more actions, especially penal ones, may be brought on one and the same ground, the bringing of one does not debar the plaintiff from subsequently bringing the other. title x. of persons through whom we can bring an action we must now remark that a man may sue either for himself, or for another as attorney, guardian, or curator: whereas formerly one man could not sue for another except in public suits, as an assertor of freedom, and in certain actions relating to guardianship. the lex hostilia subsequently permitted the bringing of an action of theft on behalf of persons who were in the hands of an enemy, or absent on state employment, and their pupils. it was, however, found extremely inconvenient to be unable to either bring or defend an action on behalf of another, and accordingly men began to employ attorneys for this purpose; for people are often hindered by illhealth, age, unavoidable absence, and many other causes from attending to their own business. for the appointment of an attorney no set form of words is necessary, nor need it be made in the presence of the other party, who indeed usually knows nothing about it; for in law any one is your attorney whom you allow to bring or defend an action on your behalf. the modes of appointing guardians and curators have been explained in the first book. title xi. of security the old system of taking security from litigants differed from that which has more recently come into use. formerly the defendant in a real action was obliged to give security, so that if judgement went against him, and he neither gave up the property which was in question, nor paid the damages assessed, the plaintiff might be able to sue either him or his sureties: and this is called security for satisfaction of judgement, because the plaintiff stipulates for payment to himself of the sum at which the damages are assessed. and there was all the more reason for compelling the defendant in a real action to give security if he was merely the representative of another. from the plaintiff in a real action no security was required if it was on his own account that he sued, but if he was merely an attorney, he was required to give security for the ratification of his proceedings by his principal, owing to the possibility of the latter's subsequently suing in person on the same claim. guardians and curators were required by the edict to give the same security as attorneys; but when they appeared as plaintiffs they were sometimes excused. so much for real actions. in personal actions the same rules applied, so far as the plaintiff was concerned, as we have said obtained in real actions. if the defendant was represented by another person, security had always to be given, for no one is allowed to defend another without security; but if the defendant was sued on his own account, he was not compelled to give security for satisfaction of judgement. nowadays, however, the practice is different; for if the defendant is sued on his own account, he is not compelled to give security for repayment of the damages assessed, whether the action be real or personal; all that he has to do is to enter into a personal engagement that he will subject himself to the jurisdiction of the court down to final judgement; the mode of making such engagement being either a promise under oath, which is called a sworn recognizance, or a bare promise, or giving of sureties, according to the defendant's rank and station. but the case is different where either plaintiff or defendant appears by an attorney. if the plaintiff does so, and the attorney's appointment is not enrolled in the records, or confirmed by the principal personally in court, the attorney must give security for ratification of his proceedings by his principal; and the rule is the same if a guardian, curator, or other person who has undertaken the management of another's affairs begins an action through an attorney. if a defendant appears, and is ready to appoint an attorney to defend the action for him, he can do this either by coming personally into court, and confirming the appointment by the solemn stipulations employed when security is given for satisfaction of judgement, or by giving security out of court whereby, as surety for his attorney, he guarantees the observance of all the clauses of the socalled security for satisfaction of judgement. in all such cases, he is obliged to give a right of hypothec over all his property, whether the security be given in or out of court, and this right avails against his heirs no less than against himself. finally, he has to enter into a personal engagement or recognizance to appear in court when judgement is delivered; and in default of such appearance his surety will have to pay all the damages to which he is condemned, unless notice of appeal is given. if, however, the defendant for some reason or other does not appear, and another will defend for him, he may do so, and it is immaterial whether the action be real or personal, provided he will give security for satisfaction of the judgement in full; for we have already mentioned the old rule, that no one is allowed to defend another without security. all this will appear more clearly and fully by reference to the daily practice of the courts, and to actual cases of litigation: and it is our pleasure that these rules shall hold not only in this our royal city, but also in all our provinces, although it may be that through ignorance the practice elsewhere was different: for it is necessary that the provinces generally shall follow the lead of the capital of our empire, that is, of this royal city, and observe its usages. title xii. of actions perpetual and temporal, and which may be brought by and against heirs it should be here observed that actions founded on statutes, senatusconsults, and imperial constitutions could be brought at any length of time from the accrual of the cause of action, until certain limits were fixed for actions both real and personal by imperial enactments; while actions which were introduced by the praetor in the exercise of his jurisdiction could, as a rule, be brought only within a year, that being the duration of his authority. some praetorian actions, however, are perpetual, that is to say, can be brought at any time which does not exceed the limit fixed by the enactments referred to; for instance, those granted to 'possessors of goods' and other persons who are fictitiously represented as heirs. so, too, the action for theft detected in the commission, though praetorian, is perpetual, the praetor having judged it absurd to limit it by a year. actions which will lie against a man under either the civil or the praetorian law will not always lie against his heir, the rule being absolute that for delict--for instance, theft, robbery, outrage, or unlawful damage--no penal action can be brought against the heir. the heir of the person wronged, however, may bring these actions, except in outrage, and similar cases, if any. sometimes, even an action on contract cannot be brought against the heir; this being the case where the testator has been guilty of fraud, and his heir has not profited thereby. if, however, a penal action, such as those we have mentioned, has been actually commenced by the original parties, it is transmitted to the heirs of each. finally, it must be remarked that if, before judgement is pronounced, the defendant satisfies the plaintiff, the judges ought to absolve him, even though he was liable to condemnation at the time when the action was commenced; this being the meaning of the old dictum, that all actions involve the power of absolution. title xiii. of exceptions we have next to examine the nature of exceptions. exceptions are intended for the protection of the defendant, who is often in this position, that though the plaintiff's case is a good one in the abstract, yet as against him, the particular defendant, his contention is inequitable. for instance, if you are induced by duress, fraud, or mistake to promise titius by stipulation what you did not owe him, it is clear that by the civil law you are bound, and that the action on your promise is well grounded; yet it is inequitable that you should be condemned, and therefore in order to defeat the action you are allowed to plead the exception of duress, or of fraud, or one framed to suit the circumstances of the cases. so too, if, as a preliminary to an advance of money, one stipulates from you for its repayment, and then never advances it after all, it is clear that he can sue you for the money, and you are bound by your promise to give it; but it would be iniquitous that you should be compelled to fulfil such an engagement, and therefore you are permitted to defend yourself by the exception that the money, in point of fact, was never advanced. the time within which this exception can be pleaded, as we remarked in a former book, has been shortened by our constitution. again, if a creditor agrees with his debtor not to sue for a debt, the latter still remains bound, because an obligation cannot be extinguished by a bare agreement; accordingly, the creditor can validly bring against him a personal action claiming payment of the debt, though, as it would be inequitable that he should be condemned in the face of the agreement not to sue, he may defend himself by pleading such agreement in the form of an exception. similarly, if at his creditor's challenge a debtor affirms on oath that he is not under an obligation to convey, he still remains bound; but as it would be unfair to examine whether he has perjured himself, he can, on being sued, set up the defence that he has sworn to the nonexistence of the debt. in real actions, too, exceptions are equally necessary; thus, if on the plaintiff's challenge the defendant swears that the property is his, there is nothing to prevent the former from persisting in his action; but it would be unfair to condemn the defendant, even though the plaintiff's contention that the property is his be well founded. again, an obligation still subsists even after judgement in an action, real or personal, in which you have been defendent, so that in strict law you may be sued again on the same ground of action; but you can effectually meet the claim by pleading the previous judgement. these examples will have been sufficient to illustrate our meaning; the multitude and variety of the cases in which exceptions are necessary may be learnt by reference to the larger work of the digest or pandects. some exceptions derive their force from statutes or enactments equivalent to statutes, others from the jurisdiction of the praetor; and some are said to be perpetual or peremptory, others to be temporary or dilatory. perpetual or peremptory exceptions are obstructions of unlimited duration, which practically destroy the plaintiff's ground of action, such as the exceptions of fraud, intimidation, and agreement never to sue. temporary or dilatory exceptions are merely temporary obstructions, their only effect being to postpone for a while the plaintiff's right to sue; for example, the plea of an agreement not to sue for a certain time, say, five years; for at the end of that time the plaintiff can effectually pursue his remedy. consequently persons who would like to sue before the expiration of the time, but are prevented by the plea of an agreement to the contrary, or something similar, ought to postpone their action till the time specified has elapsed; and it is on this account that such exceptions are called dilatory. if a plaintiff brought his action before the time had expired, and was met by the exception, this would debar him from all success in those proceedings, and formerly he was unable to sue again, owing to his having rashly brought the matter into court, whereby he consumed his right of action, and lost all chance of recovering what was his due. such unbending rules, however, we do not at the present day approve. plaintiffs who venture to commence an action before the time agreed upon, or before the obligation is yet actionable, we subject to the constitution of zeno, which that most sacred legislator enacted as to overclaims in respect of time; whereby, if the plaintiff does not observe the stay which he has voluntarily granted, or which is implied in the very nature of the action, the time during which he ought to have postponed his action shall be doubled, and at its termination the defendant shall not be suable until he has been reimbursed for all expenses hitherto incurred. so heavy a penalty it is hoped will induce plaintiffs in no case to sue until they are entitled. moreover, some personal incapacities produce dilatory exceptions, such as those relating to agency, supposing that a party wishes to be represented in an action by a soldier or a woman; for soldiers may not act as attorneys in litigation even on behalf of such near relatives as a father, mother, or wife, not even in virtue of an imperial rescript, though they may attend to their own affairs without committing a breach of discipline. we have sanctioned the abolition of those exceptions, by which the appointment of an attorney was formerly opposed on account of the infamy of either attorney or principal, because we found that they no longer were met with in actual practice, and to prevent the trial of the real issue being delayed by disputes as to their admissibility and operation. title xiv. of replications sometimes an exception, which prima facie seems just to the defendant, is unjust to the plaintiff, in which case the latter must protect himself by another allegation called a replication, because it parries and counteracts the force of the exception. for example, a creditor may have agreed with his debtor not to sue him for money due, and then have subsequently agreed with him that he shall be at liberty to do so; here if the creditor sues, and the debtor pleads that he ought not to be condemned on proof being given of the agreement not to sue, he bars the creditor's claim, for the plea is true, and remains so in spite of the subsequent agreement; but as it would be unjust that the creditor should be prevented from recovering, he will be allowed to plead a replication, based upon that agreement. sometimes again a replication, though prima facie just, is unjust to the defendant; in which case he must protect himself by another allegation called a rejoinder: and if this again, though on the face of it just, is for some reason unjust to the plaintiff, a still further allegation is necessary for his protection, which is called a surrejoinder. and sometimes even further additions are required by the multiplicity of circumstances under which dispositions are made, or by which they are subsequently affected; as to which fuller information may easily be gathered from the larger work of the digest. exceptions which are open to a defendant are usually open to his surety as well, as indeed is only fair: for when a surety is sued the principal debtor may be regarded as the real defendant, because he can be compelled by the action on agency to repay the surety whatsoever he has disbursed on his account. accordingly, if the creditor agrees with his debtor not to sue, the latter's sureties may plead this agreement, if sued themselves, exactly as if the agreement had been made with them instead of with the principal debtor. there are, however, some exceptions which, though pleadable by a principal debtor, are not pleadable by his surety; for instance, if a man surrenders his property to his creditors as an insolvent, and one of them sues him for his debt in full, he can effectually protect himself by pleading the surrender; but this cannot be done by his surety, because the creditor's main object, in accepting a surety for his debtor, is to be able to have recourse to the surety for the satisfaction of his claim if the debtor himself becomes insolvent. title xv. of interdicts we have next to treat of interdicts or of the actions by which they have been superseded. interdicts were formulae by which the praetor either ordered or forbad some thing to be done, and occurred most frequently in case of litigation about possession or quasi-possession. the first division of interdicts is into orders of abstention, of restitution, and of production. the first are those by which the praetor forbids the doing of some act--for instance, the violent ejection of a bona fide possessor, forcible interference with the internment of a corpse in a place where that may lawfully be done, building upon sacred ground, or the doing of anything in a public river or on its banks which may impede its navigation. the second are those by which he orders restitution of property, as where he directs possession to be restored to a 'possessor of goods' of things belonging to an inheritance, and which have hitherto been in the possession of others under the title of heir, or without any title at all; or where he orders a person to be reinstated in possession of land from which he has been forcibly ousted. the third are those by which he orders the production of persons or property; for instance, the production of a person whose freedom is in question, of a freedman whose patron wishes to demand from him certain services, or of children on the application of the parent in whose power they are. some think that the term interdict is properly applied only to orders of abstention, because it is derived from the verb 'interdicere,' meaning to denounce or forbid, and that orders of restitution or production are properly termed decrees; but in practice they are all called interdicts, because they are given 'inter duos,' between two parties. the next division is into interdicts for obtaining possession, for retaining possession, and for recovering possession. interdicts for obtaining possession are exemplified by the one given to a 'possessor of goods,' which is called 'quorum bonorum,' and which enjoins that whatever portion of the goods, whereof possession has been granted to the claimant, is in the hands of one who holds by the title of heir or as mere possessor only, shall be delivered up to the grantee of possession. a person is deemed to hold by the title of heir who thinks he is an heir; he is deemed to hold as mere possessor who relies on no title at all, but holds a portion of the whole of the inheritance, knowing that he is not entitled. it is called an interdict for obtaining possession, because it is available only for initiating possession; accordingly, it is not granted to a person who has already had and lost possession. another interdict for obtaining possession is that named after salvius, by which the landlord gets possession of the tenant's property which has been hypothecated as a security for rent. the interdicts 'uti possidetis' and 'utrubi' are interdicts for retaining possession, and are employed when two parties claim ownership in anything, in order to determine which shall be defendant and which plaintiff; for no real action can be commenced until it is ascertained which of the parties is in possession, because law and reason both require that one of them shall be in possession and shall be sued by the other. as the role of defendant in a real action is far more advantageous than that of plaintiff, there is almost invariably a keen dispute as to which party is to have possession pending litigation: the advantage consisting in this, that, even if the person in possession has no title as owner, the possession remains to him unless and until the plaintiff can prove his own ownership: so that where the rights of the parties are not clear, judgement usually goes against the plaintiff. where the dispute relates to the possession of land or buildings, the interdict called 'uti possidetis' is employed; where to movable property, that called 'utrubi.' under the older law their effects were very different. in 'uti possidetis' the party in possession at the issue of the interdict was the winner, provided he had not obtained that possession from his adversary by force, or clandestinely, or by permission; whether he had obtained it from some one else in any of these modes was immaterial. in 'utrubi' the winner was the party who had been in possession the greater portion of the year next immediately preceding, provided that possession had not been obtained by force, or clandestinely, or by permission, from his adversary. at the present day, however, the practice is different, for as regards the right to immediate possession the two interdicts are now on the same footing; the rule being, that whether the property in question be movable or immovable, the possession is adjudged to the party who has it at the commencement of the action, provided he had not obtained it by force, or clandestinely, or by permission, from his adversary. a man's possession includes, besides his own personal possession, the possession of any one who holds in his name, though not subject to his power; for instance, his tenant. so also a depositary or borrower for use may possess for him, as is expressed by the saying that we retain possession by any one who holds in our name. moreover, mere intention suffices for the retention of possession; so that although a man is not in actual possession either himself or through another, yet if it was not with the intention of abandoning the thing that he left it, but with that of subsequently returning to it, he is deemed not to have parted with the possession. through what persons we can obtain possession has been explained in the second book; and it is agreed on all hands that for obtaining possession intention alone does not suffice. an interdict for recovering possession is granted to persons who have been forcibly ejected from land or buildings; their proper remedy being the interdict 'unde vi,' by which the ejector is compelled to restore possession, even though it had been originally obtained from him by the grantee of the interdict by force, clandestinely, or by permission. but by imperial constitutions, as we have already observed, if a man violently seizes on property to which he has a title, he forfeits his right of ownership; if on property which belongs to some one else, he has not only to restore it, but also to pay the person whom he has violently dispossessed a sum of money equivalent to its value. in cases of violent dispossession the wrongdoer is liable under the lex iulia relating to private or public violence, by the former being meant unarmed force, by the latter dispossession effected with arms; and the term 'arms' must be taken to include not only shields, swords, and helmets, but also sticks and stones. thirdly, interdicts are divided into simple and double. simple interdicts are those wherein one party is plaintiff and the other defendant, as is always the case in orders of restitution or production; for he who demands restitution or production is plaintiff, and he from whom it is demanded is defendant. of interdicts which order abstention some are simple, others double. the simple are exemplified by those wherein the praetor commands the defendant to abstain from desecrating consecrated ground, or from obstructing a public river or its banks; for he who demands such order is the plaintiff, and he who is attempting to do the act in question is defendant. of double interdicts we have examples in uti possidetis and utrubi; they are called double because the footing of both parties is equal, neither being exclusively plaintiff or defendant, but each sustaining the double role. to speak of the procedure and result of interdicts under the older law would now be a waste of words; for when the procedure is what is called 'extraordinary,' as it is nowadays in all actions, the issue of an interdict is unnecessary, the matter being decided without any such preliminary step in much the same way as if it had actually been taken, and a modified action had arisen on it. title xvi. of the penalties for reckless litigation it should here be observed that great pains have been taken by those who in times past had charge of the law to deter men from reckless litigation, and this is a thing that we too have at heart. the best means of restraining unjustifiable litigation, whether on the part of a plaintiff or of a defendant, are money fines, the employment of the oath, and the fear of infamy. thus under our constitution, the oath has to be taken by every defendant, who is not permitted even to state his defence until he swears that he resists the plaintiff's claim because he believes that his cause is a good one. in certain cases where the defendant denies his liability the action is for double or treble the original claim, as in proceedings on unlawful damages, and for recovery of legacies bequeathed to religious places. in various actions the damages are multiplied at the outset; in an action on theft detected in the commission they are quadrupled; for simple theft they are doubled; for in these and some other actions the damages are a multiple of the plaintiff's loss, whether the defendant denies or admits the claim. vexatious litigation is checked on the part of the plaintiff also, who under our constitution is obliged to swear on oath that his action is commenced in good faith; and similar oaths have to be taken by the advocates of both parties, as is prescribed in other of our enactments. owing to these substitutes the old action of dishonest litigation has become obsolete. the effect of this was to penalize the plaintiff in a tenth part of the value he claimed by action; but, as a matter of fact, we found that the penalty was never exacted, and therefore its place has been taken by the oath above mentioned, and by the rule that a plaintiff who sues without just cause must compensate his opponent for all losses incurred, and also pay the costs of the action. in some actions condemnation carries infamy with it, as in those on theft, robbery, outrage, fraud, guardianship, agency, and deposit, if direct, not contrary; also in the action on partnership, which is always direct, and in which infamy is incurred by any partner who suffers condemnation. in actions on theft, robbery, outrage, and fraud, it is not only infamous to be condemned, but also to compound, as indeed is only just; for obligation based on delict differs widely from obligation based on contract. in commencing an action, the first step depends upon that part of the edict which relates to summons; for before anything else is done, the adversary must be summoned, that is to say, must be called before the judge who is to try the action. and herein the praetor takes into consideration the respect due to parents, patrons, and the children and parents of patrons, and refuses to allow a parent to be summoned by his child, or a patron by his freedman, unless permission so to do has been asked of and obtained from him; and for nonobservance of this rule he has fixed a penalty of fifty solidi. title xvii. of the duties of a judge finally we have to treat of the duties of a judge; of which the first is not to judge contrary to statutes, the imperial laws, and custom. accordingly, if he is trying a noxal action, and thinks that the master ought to be condemned, he should be careful to word his judgement thus: 'i condemn publius maevius to pay ten aurei to lucius titius, or to surrender to him the slave that did the wrong.' if the action is real, and he finds against the plaintiff, he ought to absolve the defendant; if against the latter, he ought to order him to give up the property in question, along with its fruits. if the defendant pleads that he is unable to make immediate restitution and applies for execution to be stayed, and such application appears to be in good faith, it should be granted upon the terms of his finding a surety to guarantee payment of the damages assessed, if restitution be not made within the time allowed. if the subject of the action be an inheritance, the same rule applies as regards fruits as we laid down in speaking of actions for the recovery of single objects. if the defendant is a mala fide possessor, fruits which but for his own negligence he might have gathered are taken into account in much the same way in both actions; but a bona fide possessor is not held answerable for fruits which he has not consumed or has not gathered, except from the moment of the commencement of the action, after which time account is taken as well of fruits which might have been gathered but for his negligence as of those which have been gathered and consumed. if the object of the action be production of property, its mere production by the defendant is not enough, but it must be accompanied by every advantage derived from it; that is to say, the plaintiff must be placed in the same position he would have been in if production had been made immediately on the commencement of the action. accordingly if, during the delay occasioned by trial, the possessor has completed a title to the property by usucapion, he will not be thereby saved from being condemned. the judge ought also to take into account the mesne profits, or fruits produced by the property in the interval between the commencement of the action and judgement. if the defendant pleads that he is unable to make immediate production, and applies for a stay, and such application appears to be in good faith, it should be granted on his giving security that he will render up the property. if he neither complies at once with the judge's order for production, nor gives security for doing so afterwards, he ought to be condemned in a sum representing the plaintiff's interest in having production at the commencement of the proceedings. in an action for the division of a 'family' the judge ought to assign to each of the heirs specific articles belonging to the inheritance, and if one of them is unduly favoured, to condemn him, as we have already said, to pay a fixed sum to the other as compensation. again, the fact the one only of two jointheirs has gathered the fruits of land comprised in the inheritance, or has damaged or consumed something belonging thereto, is ground for ordering him to pay compensation to the other; and it is immaterial, so far as this action is concerned, whether the jointheirs are only two or more in number. the same rules are applied in an action for partition of a number of things held by joint-owners. if such an action be brought for the partition of a single object, such as an estate, which easily admits of division, the judge ought to assign a specific portion of each jointowner, condemning such one as seems to be unduly favoured to pay a fixed sum to the other as compensation. if the property cannot be conveniently divided--as a slave, for instance, or a mule--it ought to be adjudged entirely to one only of the jointowners, who should be ordered to pay a fixed sum to the other as compensation. in an action for rectification of boundaries the judge ought to examine whether an adjudication of property is actually necessary. there is only one case where this is so; where, namely, convenience requires that the line of separation between fields belonging to different owners shall be more clearly marked than heretofore, and where, accordingly, it is requisite to adjudge part of the one's field to the owner of the other, who ought, in consequence, to be ordered to pay a fixed sum as compensation to his neighbour. another ground for condemnation in this action is the commission of any malicious act, in respect of the boundaries, by either of the parties, such as removal of landmarks, or cutting down boundary trees: as also is contempt of court, expressed by refusal to allow the fields to be surveyed in accordance with a judge's order. wherever property is adjudged to a party in any of these actions, he at once acquires a complete title thereto. title xviii. of public prosecutions public prosecutions are not commenced as actions are, nor indeed is there any resemblance between them and the other remedies of which we have spoken; on the contrary, they differ greatly both in the mode in which they are commenced, and in the rules by which they are conducted. they are called public because as a general rule any citizen may come forward as prosecutor in them. some are capital, others not. by capital prosecutions we mean those in which the accused may be punished with the extremest severity of the law, with interdiction from water and fire, with deportation, or with hard labour in the mines: those which entail only infamy and pecuniary penalties are public, but not capital. the following statutes relate to public prosecutions. first, there is the lex iulia on treason, which includes any design against the emperor or state; the penalty under it is death, and even after decease the guilty person's name and memory are branded with infamy. the lex iulia, passed for the repression of adultery, punishes with death not only defilers of the marriage-bed, but also those who indulge in criminal intercourse with those of their own sex, and inflicts penalties on any who without using violence seduce virgins or widows of respectable character. if the seducer be of reputable condition, the punishment is confiscation of half his fortune; if a mean person, flogging and relegation. the lex cornelia on assassination pursues those persons, who commit this crime with the sword of vengeance, and also all who carry weapons for the purpose of homicide. by a 'weapon,' as is remarked by gaius in his commentary on the statute of the twelve tables, is ordinarily meant some missile shot from a bow, but it also signifies anything thrown with the hand; so that stones and pieces of wood or iron are included in the term. 'telum,' in fact, or 'weapon,' is derived from the greek 'telou,' and so means anything thrown to a distance. a similar connexion of meaning may be found in the greek word 'belos,' which corresponds to our 'telum,' and which is derived from 'ballesthai,' to throw, as we learn from xenophon, who writes, 'they carried with them 'belei,' namely spears, bows and arrows, slings, and large numbers of stones.' 'sicarius,' or assassin, is derived from 'sica,' a long steel knife. this statute also inflicts punishment of death on poisoners, who kill men by their hateful arts of poison and magic, or who publicly sell deadly drugs. a novel penalty has been devised for a most odious crime by another statute, called the lex pompeia on parricide, which provides that any person who by secret machination or open act shall hasten the death of his parent, or child, or other relation whose murder amounts in law to parricide, or who shall be an instigator or accomplice of such a crime, although a stranger, shall suffer the penalty of parricide. this is not execution by the sword or by fire, or any ordinary form of punishment, but the criminal is sewn up in a sack with a dog, a cock, a viper, and an ape, and in this dismal prison is thrown into the sea or a river, according to the nature of the locality, in order that even before death he shall begin to be deprived of the enjoyment of the elements, the air being denied him while alive, and interment in the earth when dead. those who kill persons related to them by kinship or affinity, but whose murder is not parricide, will suffer the penalties of the lex cornelia on assassination. the lex cornelia on forgery, otherwise called the statute of wills, inflicts penalties on all who shall write, seal, or read a forged will or other document, or shall substitute the same for the real original, or who shall knowingly and feloniously make, engrave, or use a false seal. if the criminal be a slave, the penalty fixed by the statute is death, as in the statute relating to assassins and poisoners: if a free man, deportation. the lex iulia, relating to public or private violence, deals with those persons who use force armed or unarmed. for the former, the penalty fixed by the statute is deportation; for the latter, confiscation of one third of the offender's property. ravishment of virgins, widows, persons professed in religion, or others, and all assistance in its perpetration, is punished capitally under the provisions of our constitution, by reference to which full information on this subject is obtainable. the lex iulia on embezzlement punishes all who steal money or other property belonging to the state, or devoted to the maintenance of religion. judges who during the term of office embezzle public money are punishable with death, as also are their aiders and abettors, and any who receive such money knowing it to have been stolen. other persons who violate the provisions of this statute are liable to deportation. a public prosecution may also be brought under the lex fabia relating to manstealing, for which a capital penalty is sometimes inflicted under imperial constitutions, sometimes a lighter punishment. other statutes which give rise to such prosecutions are the lex iulia on bribery, and three others, which are similarly entitled, and which relate to judicial extortion, to illegal combinations for raising the price of corn, and to negligence in the charge of public moneys. these deal with special varieties of crime, and the penalties which they inflict on those who infringe them in no case amount to death, but are less severe in character. we have made these remarks on public prosecutions only to enable you to have the merest acquaintance with them, and as a kind of guide to a fuller study of the subject, which, with the assistance of heaven, you may make by reference to the larger volume of the digest or pandects. the end of the institutes of justinian transcriber's note: obvious typographical errors have been corrected. inconsistent hyphenation and spelling in the original document have been preserved. italic text is denoted by _underscores_ and bold text by =equal signs=. everyman's library edited by ernest rhys poetry and the drama the old yellow book being a supplementary volume to "the ring and the book" translated and edited by charles w. hodell this is no. of _everyman's library_. the publishers will be pleased to send freely to all applicants a list of the published and projected volumes, arranged under the following sections: travel * science * fiction theology & philosophy history * classical for young people essays * oratory poetry & drama biography reference romance in four styles of binding: cloth, flat back, coloured top; leather, round corners, gilt top; library binding in cloth, & quarter pigskin london: j. m. dent & sons, ltd. new york: e. p. dutton & co. poets are the trumpets which sing to battle ... poets are the unacknowledged legislators of the world shelley the old yellow book: source of robert browning's the ring & the book london & toronto j. m. dent & sons ltd. new york e. p. dutton & co first issue of this edition reprinted publishers' note some years before his death browning promised to leave the _old yellow book_, together with other books and manuscripts, to balliol college, oxford, and his son carried out the promise soon after the poet's decease. the carnegie institution of washington, d. c., has reproduced the entire book in photo-facsimile, with translation and editing by charles w. hodell. the publishers gratefully acknowledge the kindness and generosity of the institution in allowing the translation of the _yellow book_ to be reproduced in the present volume. they have also to acknowledge their indebtedness to professor hodell for the courtesy he has shown, and the great help he has given in editing these volumes. hitherto the work has been practically inaccessible to british readers, and in its new dress it is hoped it will be found invaluable in interpreting the greatest work of robert browning. introduction the _old yellow book_ is a soiled and bloody page from the criminal annals of rome two centuries ago, saved apparently by mere chance for the one great artist of modern literature who could best use it, and who has raised this record of a forgotten crime to a permanent place in that ideal world of man's creation where caponsacchi and pompilia have joined the company of paolo and francesca, of the red cross knight, of imogen, of marguerite and faust, and of don quixote. one june day of , robert browning passed from the casa guidi home to enjoy the busy life of florence. there, "pushed by the hand ever above my shoulder," he entered the piazza of san lorenzo: crammed with booths, buzzing and blaze, noontide and market-time. he had brought home from such wanderings many a rare old tapestry, or picture, or carving from the long artistic past of the city. this day his eye caught the soiled, vellum-covered volume, crowded between its insignificant neighbours. "one glance at the lettered back," declares the poet, "and stall! a lira made it mine." all the way home and all day long, he pored over these pages, until by nightfall he had so mastered the facts of the case that the whole tragedy lay plain before his mind's eye. the book led him, and leads us, back to the morning of january , , when all rome was astir with the sensation of a brutal assassination. the aged comparini, cut to pieces in their own home in the very heart of rome on the evening before by a band of assassins, were now exposed to the view of an excited mob of the curious and idle. pompilia, desperately wounded, lay a-dying. a police captain and posse were in pursuit of the criminals, one of whom was a nobleman who had held office in the household of one of the great cardinals. toward night the criminals were brought back to the city, and were followed through the streets to the prison doors by a great throng. just seven weeks later and again rome was throbbing with excitement. unwonted crowds were pressing into the piazza del popolo, where gallows and scaffold had been prepared. at last, up the corso filed the brotherhood of death with their black gowns and great cross, and behind them, in separate carts, the five criminals. in the midst of a sea of upturned faces guido and his fellows met their end, and the curtain fell. the _old yellow book_ is the record of the court procedure of those seven intervening weeks, and shows us the whole legal battle fought to save guido, while rome looked on with the fascinated interest which has always attended the great murder trials. it includes the lawyers' arguments for and against the accused, together with a part of the evidence brought into court, and some additional miscellaneous data on the case. all this had evidently been assembled by the florentine lawyer, cencini, to whom certain letters included are addressed. he seems to have been interested in the case as a precedent on an important and much disputed point of law, "whether and when a husband may kill an adulterous wife." cencini may also have had some professional relation with the franceschini family at arezzo. at any rate, he set the material in order, provided title-page and index, and a transcript of the record in a criminal case against pompilia in the tuscan courts (pp. - ), and bound it securely in the vellum cover which conveyed it to the poet's hands more than a century and a half later. whatever meaning this volume may have as a legal precedent, it had for browning, and has for the lay reader, a deep human interest as the incomplete record of a sordid series of intrigues for certain properties, ending at last in a fearful crime. guido franceschini, scion of a noble but impoverished tuscan family, had sought his fortunes in rome, and had attained a secretaryship in the household of cardinal lauria. his brother, the abate paolo, a shrewd and effective man, rose much higher, at last attaining important office among the knights of st. john. guido, less astute and less ingratiating, reached middle life with but scant success, and at last was left unprovided. with the assistance of abate paolo, he planned to recoup his fortunes by a bourgeois marriage. though past forty years of age and of unattractive appearance, he won, by his noble name and subtle intrigue and falsification, the thirteen-year-old daughter of the comparini, of the well-to-do middle class of rome. after the marriage in december , pompilia and her parents accompanied guido back to arezzo, where, in the ruinous franceschini _palazzo_, the comparini had ample opportunity to repent their folly. bitter contentions soon arose, and at last the comparini fled from the brutalities of their son-in-law, and returned to rome. there they published broadcast the sordid poverty and the ignoble brutality of their persecutors, probably printing and circulating the affidavit of the servant (pp. - ). guido seems to have retorted by circulating the forged letter from pompilia (pp. , ). but they struck a more deadly blow at the pride of the franceschini when they revealed that pompilia was not their own child, but was of ignominious parentage. and in the spring of they brought suit before judge tomati for the recovery of the dowry monies paid to franceschini--a bitter humiliation to the greedy poverty of the franceschini. it must have been a scandalous suit, bringing dishonour to both parties as their domestic difficulties were exposed to the throngs of the curious. in this trial were adduced the letters of the governor (pp. , ) and of the bishop of arezzo (p. ). the comparini lost their suit, but appealed to the rota, and their case was pending for several years, during which time they may have baited the franceschini with spiteful scandals. in the meantime, the child-wife, pompilia, was left in desperate plight--despised and hated by her husband's family. her situation grew intolerable. guido had evidently determined to rid himself of her without relaxing his grip on her property. his brutalities were systematic and cunning. at last she was driven to flee for her life, and on april , , made her escape under the protection of caponsacchi, a gallant young priest. it was a desperate step, gravely reprehensible in the eyes of the world. the fugitives pressed toward rome, but guido overtook them at castelnuovo, fifteen miles short of their destination, and had them arrested. at rome, criminal charges of flight and adultery were brought against them. this process of flight, as it is repeatedly called in the _yellow book_, continued all through the summer. it was for their defence in this case that pompilia and caponsacchi made their affidavits (pp. and ), giving their motives for the flight. at the same time guido urged the evidence of the love-letters (pp. - ), which he claimed to have found at the time of the arrest of the fugitives. in september, judgment was rendered against caponsacchi--relegation for three years to civita vecchia--a punishment commensurate with indiscretion rather than with crime. pompilia was unsentenced, but was retained for a month in safekeeping in the nunnery delle scalette, and was then permitted to return to the home of her foster-parents, the comparini, though still technically a prisoner in this home (p. ). here on december a boy was born. on christmas eve, guido reached rome with four young rustics, whom he had hired to assist him in the assassination. for a week he lurked in the villa of his brother, abate paolo, who had left rome. then, on the evening of january , he won entrance to the home of the comparini by using the name of caponsacchi. the parents were instantly stabbed to death, and pompilia was cut to pieces with twenty-two wounds. leaving her for dead, guido and his cut-throats fled, as the outcries of the victims had given the alarm. that night they travelled afoot nearly twenty miles, but were pursued by the police, and were arrested with the bloody arms still in their possession. such was the crime, and the _old yellow book_ is the record of the legal battle over the assassins, which was fought through the criminal courts of rome, presided over by vice-governor venturini. the prosecution and defence alike were conducted by officers of the court, two lawyers on each side, the procurator and advocate of the poor for the defendants, and the procurator and advocate of the fisc against them. as the fact of the crime was definitely ascertained, the legal battle turned entirely on the justification or condemnation of the motive of the crime. the defence maintained that the assassination had been for honour's sake, and the unwritten law, to which appeal is made in generation after generation, was urged at every point. that guido had suffered unspeakable ignominy cannot be denied; that his wife had been untrue to him even in the perilous flight with caponsacchi is unproved, as the courts had evidently held in the process of flight. the prosecution, on the other hand, reiterated in every argument their reading of guido's motive--greed. greed had led him to marry pompilia. greed had occasioned his disgraceful wranglings with the comparini. defeated greed had made him torture his wife into scandalous flight, and calculating greed had led him to commit the murder at a time and in a manner to save the whole property to himself. still further, said the prosecution, not only was his motive bad, but the crime was committed in a way which involved him in half a dozen accessory crimes, each of them capital. such is the drift of the argument, which is fortified at every point by citation of precedent from the legal procedure of all ages. altogether it is a highly skilled legal battle according to the technical limitations of the game, while the simple appeals to equity and to common human feeling hardly enter at all. the trial proceeded in two stages. the earlier one, during the latter half of january, was opened by arcangeli (pamphlet ), supported by advocate spreti (pamphlet ). the prosecution is opened by procurator gambi (pamphlet ), supported by advocate bottini (pamphlet ). arcangeli and bottini make further argument in pamphlets and . two pamphlets of evidence were assembled and printed--for the defence, pamphlet ; and for the prosecution, pamphlet . the latter part of this stage of the case is much occupied with arguing whether guido and his companions may be tortured to get a fuller statement from them. in spite of the efforts of guido's attorneys, the torture was evidently decreed, and fuller evidence was forced from the defendants, though one of them bore the torture till he fainted twice. the trial then enters on its second stage, in which, after some preliminary skirmishing about the legality of the torture and the status of the evidence given under this torture, the lawyers settle to their most masterly work. arcangeli and spreti develop an elaborate and skilled defence (pamphlets and ), and are answered by bottini's masterpiece for the prosecution (pamphlet ). spreti closes the defence in pamphlet . pamphlet presents some additional matters of evidence. all these arguments and summaries of evidence were printed by the official papal press (see the imprint _typis rev. cam. apost._), probably overnight, between the sessions of the court, as typewritten briefs would be prepared to-day. few copies were printed, and these were solely for the judges and attorneys in the case. there would be no popular circulation of them in rome at large. the particular copies included in the _old yellow book_ were probably gathered by one of these attorneys, and sent to signor cencini in florence (letter iii. p. ). we need but look to our own age to rest assured that outside of the court room all rome was athrill with interest in this murder case, and was speculating on the fate of the accused. the attorneys for the defence, in the midst of the trial, made a sudden appeal to this public interest and sought the support of public sentiment by means of an anonymous pamphlet (pamphlet ) written in italian and printed without an imprint or signature, but evidently addressed to the bar of public opinion. it seems to have been written by guido's lawyers, or their lackeys, for it repeats the various points already made in the arguments. whether it was distributed free or was sold for a small price, it must have been seized and devoured by all rome as are the journalistic reports of notorious criminal trials to-day. we can imagine the alarm of the prosecution when they perceived this flank movement against them. with all possible haste they prepared their reply, also in italian and without signature or imprint, and probably within a day or two had issued this response (pamphlet ), which meets the other pamphlet at every point, and bitterly arraigns the greed of guido. these two pamphlets evidently suggested to browning his "half-rome" and "other half-rome." there must have been other popular exploitations of this crime. two manuscript italian narratives of it have been discovered. the first of these (pp. - ) was found in london and sent to browning, who used it extensively in writing his poem. the second (pp. - ) was discovered a few years ago in rome. other accounts may yet come to light. the trial of guido and his companions was carried forward to a prompt judgment, and on february they were pronounced guilty and were condemned to death. a technical staying of sentence for four days was granted by reason of guido's _clerical privilege_, but execution followed on february . the _old yellow book_ includes three original letters (pp. - ) written from rome immediately after the execution to signor cencini at florence. yet the case was not quite at an end. a number of civil suits were promptly instituted by various claimants for the property of the comparini. the franceschini still pushed their claim in spite of the infamy they had suffered for that property. pompilia's executor, tighetti, claimed all in trust for the child, gaetano. then the refuge of the convertites, under their legal right to the property of all women of evil life who died in rome, accused the memory of pompilia and claimed her property. the case seemed to be entering on one of those interminable struggles in court. the procurator lamparelli (pamphlet ) goes back to analyse again the motives in the whole case and to justify pompilia's innocence. the remainder of this trial is lost to us save for the final _definitive sentence_ of the courts (pamphlet ), issued in september , which clears the memory of pompilia entirely and for ever in the eyes of the law. this was the record which fell into browning's hands. the poet tells of his immediate interest in the tragedy, partly due to that common human interest in great crimes, partly to the casuistic presentation of motive throughout the _book_, partly to his championing the rights of pompilia, dishonoured and slain not merely by a brutally selfish husband, but by a corrupt social condition around her. after some delay, browning saw his way to embody in art the story which had interested him so deeply. the plan came to him, according to w. m. rossetti, one day while he was walking at biarritz, and from till the publication in - , he was working continuously on _the ring and the book_. he had mastered every detail of the _yellow book_ by continuous re-readings, and in his art he was scrupulously, but never laboriously, accurate to the facts before him. in the poem he names thirty-three persons exactly as he found them in his original. place names are adopted with the same accuracy. the specific dates recorded in the _book_ are followed at all points, save in the significant change of the date of caponsacchi's rescue of pompilia from april to , st. george's day. the incidents of the tragedy, even when compromising to pompilia, whose cause he championed, are used without repression or falsification. and perhaps most remarkable of all, the poet had mastered all the technical paraphernalia and phraseology of the lawyers, and uses these with minute care, not entirely devoid of misunderstanding and error. in the _book_ he found all the points of law, all the precedents and authorities, and almost all of the latin phrases and sentences found in the monologues of the lawyers of the poem. a remarkable instance of this is seen in his word for word adaptation of the long peroration of arcangeli (pamphlet ) in the close of the monologue of the arcangeli of the poem. and the actual letter of arcangeli (p. ) is reproduced verbatim in the poem, book xii. ll. - . altogether the poet affords one of the most remarkable illustrations of literal and detailed accuracy in the use of the raw material of art. yet here, as in all cases of true art, the greatness of the final product lies not so much in the material that fell to the artist as in the personal resource and power within himself which was able to use the material. browning found suggestion for a suffering saint in fra celestino's report of pompilia's death-bed (pp. , ), but the pompilia of the poem embodies the poet's deepest insight into womanhood with all its spiritual relationships, in the love of man, the passion of maternity, and devotion to god. browning ascertained in the _book_ that caponsacchi was a resolute man, who had involved himself in many perils for the sake of pompilia, but from his own personal resource of manly devotion, of chivalrous daring, of passionate indignation at wrong, of spiritual tenderness and reverence, he created a caponsacchi. in the _book_ he found every turn of the cunning, of the greed, of the brutality of guido and his family, but from his own deep realisation of the power of evil in the world, and of the black depravity of the lowest forms of humanity, he created his franceschini. thus at every point, founding himself on the fact of the _book_, he is able to set forth this tragedy to the world as it grew in his own imagination while searching his own heart and the hearts of others through many years. and the chance-found _old yellow book_ at last occasioned the most profound utterance robert browning was to give to the world in all that concerns the human heart and its motives as they play the drama of the world before the eye of the almighty. charles w. hodell. "do you see this square old yellow book ... pure, crude fact. give it me back! the thing's restorative i' the touch and sight." a setting-forth of the entire criminal cause against guido franceschini, nobleman of arezzo, and his bravoes, who were put to death in rome, february , . the first by beheading, the other four by the gallows. roman murder-case. in which it is disputed whether and when a husband may kill his adulterous wife without incurring the ordinary penalty. contents page sentence of the criminal court of florence in the criminal case against gregorio guillichini, francesca pompilia comparini, wife of guido franceschini, etc. december argument in defence of the said franceschini of the honourable signor giacinto arcangeli, procurator of the poor in rome, made before the congregation of monsignor the governor argument of the honourable signor advocate desiderio spreti, advocate of the poor, in defence of said franceschini and his associates argument of the abovesaid signor arcangeli in defence of biagio agostinelli and his companions in crime summary of fact made in behalf of the fisc argument of signor francesco gambi, procurator of the fisc and of the reverend apostolic chamber, against the abovesaid franceschini and his companions in crime argument of signor giovanni battista bottini, advocate of the fisc and of the reverend apostolic chamber, against the abovesaid summary of fact in behalf of franceschini and his associates in crime another argument of the abovesaid signor arcangeli in favour and defence of the abovesaid another argument of signor advocate spreti in favour of the above an account of the facts and grounds, made and given by an anonymous author another summary made on behalf of the fisc argument of signor gambi, procurator of the fisc, against the abovesaid franceschini and his companions another argument of the signor giovanni battista bottini, advocate of the fisc another argument of the abovesaid against the said defendants a response of the abovesaid account of fact as given by the anonymous author argument of signor advocate spreti in favour of franceschini, etc. letter written by the honourable signor giacinto arcangeli, procurator of the poor, to monsignore francesco cencini in florence, in which he tells him that the sentence of death had been executed in rome against the guilty on february , --that is, that franceschini had been beheaded, and the other four hanged two other letters, one written by signor gaspero del torto and the other by signor carlo antonio ugolinucci to the aforesaid monsignore francesco cencini argument of signor antonio lamparelli, procurator of the poor in the said case the sentence of signor marco antonio venturini, judge in criminal causes, which declares that the said adultery was not proved, and which restores to her original fame the memory of francesca pompilia comparini, wife of guido franceschini the secondary source of "the ring and the book" trial and death of franceschini and his companions notes and comment [illustration: _but for me the muse in her strength prepares her mightiest arrow._] [illustration: _facsimile page from the original "old yellow book."_] sentence of the criminal court of florence _february , a.d._ attestation by me undersigned how, in the order of the affairs of the governors, which are set before his serene highness, in the chancery of the illustrious signori auditori of the criminal court of florence, there appears among other affairs of business, under decision , the following of tenor as written below, that is arezzo against . gregorio, son of francesco guillichini, not described. . francesca pompilia comparini, wife of guido franceschini, and . francesco, son of giovanni borsi called venerino, servant of agosto, host at the "canale," because the second accused, against her honour and conjugal faith, had given herself up to dishonest amours with the canon giuseppe caponsacchi and with the first accused, who instructed her, as you may well believe, to part from the aforesaid city of arezzo, the evening of april , . and, that they might not be discovered and hindered, the second accused put a sleeping-potion and opium in her husband's wine at dinner. at about one o'clock the same night, the said canon caponsacchi and the first accused conducted the aforesaid second accused away from the home of her husband. as the gates of the city were closed, they climbed the wall on the hill of the torrione; and having reached the "horse" inn, outside of the gate san clemente, they were there awaited by the third accused with a two-horse carriage. when canon caponsacchi and the second accused had entered into the said carriage, the word was given by him, the aforesaid first accused, and they set out then upon the way toward perugia, the said third accused driving the carriage as far as camoscia. and while they were travelling along the road they kissed one another before the very face of the third accused. still further, the second accused, along with the first accused and canon caponsacchi, carried away furtively from the house of the said guido, her husband, from a chest locked with a key, which she took from her husband's trousers [the following articles]: about scudi in gold and silver coin; an oriental pearl necklace worth about scudi; a pair of diamond pendants worth scudi; a solitaire diamond ring worth scudi; two pearls with their pins, to be used as pendants, scudi; a gold ring with turquoise setting worth scudi; a gold ring set with ruby worth scudi; an amber necklace worth scudi; a necklace of garnets alternated with little beads of fine brass worth scudi; a pair of earrings in the shape of a little ship of gold with a pearl worth scudi; two necklaces of various common stones worth scudi; a coronet of carnelians with five settings and with a cameo in silver filigree worth scudi; a damask suit with its mantle, and a petticoat of a poppy colour, embroidered with various flowers, worth scudi; a light-blue petticoat, flowered with white, worth scudi; two vests to place under the mantle worth scudi; a pair of sleeves of point lace worth scudi; another pair of sleeves fringed with lace worth scudi; a collar worth scudi; a scarf of black taffeta for the shoulder with a bow of ribbon worth scudi; an embroidered silk cuff worth scudi; two aprons of key-bit pattern with their lace worth scudi; a pair of scarlet silk boots worth scudi; a pair of woollen stockings, a pair of white linen hose, and a pair of light-blue hose, worth scudi; a snuff-coloured worsted bodice with petticoat, ornamented with white and red pawns, worth scudi; a blue and white coat of yarn and linen, adorned with scarlet and other coloured ornaments, worth scudi; a worsted petticoat of light-blue and orange colour, striped lengthwise, with yellow lines and with various colours at the feet, worth scudi; an embroidered petticoat worth scudi; a silk cuff worth scudi; four linen smocks for women worth scudi; a pair of shoes with silver buckles worth scudi; many tassels and tapes of various sorts worth scudi; six fine napkins worth scudi; a collar of crumpled silk worth scudi; two pairs of gloves of a value of scudi; four handkerchiefs worth scudi; a little silver snuff-box with the arms of the franceschini house upon it worth scudi; a coat of her husband guido, rubbed and rent by the lock of a chest where he kept part of the aforesaid clothing. and they had converted the whole to their own uses against the will of the same, the first accused and canon caponsacchi having scaled the walls of the city in company with the second accused, as soon as she had committed adultery with them. and the said third accused had given opportunity for flight to the said second accused along with the canon, in the manner told. therefore the commissioner of arezzo was of opinion to condemn arbitrarily the first accused to five years' confinement at portoferrio with the penalty of the galleys for the same length of time, not counting the reservation of days to appear and clear himself; to condemn the second accused to the penalty of the stinche for life and to the restitution of what was taken away, with the abovesaid reservation; and that the third accused be not prosecuted further and be liberated from prison. but the criminal court was of opinion that the first accused should be condemned to the galleys during the pleasure of his serene highness, with the said reservation. as to the second accused, who was imprisoned here in rome, in a sacred place, it suspended the execution. and for the third, who had done no voluntary evil, it gave up further inquiry. again proposed in the said business before his serene and blessed highness with the signature of december , . the opinion of the court stands approved. in sign of which, i, joseph vesinius, j. v. d., an official in the criminal court of florence, etc., in faith whereto, etc. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor in criminal cases_: _roman murder-case_ _on behalf of count guido franceschini, prisoner, against the fisc._ _memorial of fact and law._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord governor: count guido franceschini, born of a noble race, had married, under ill omen, francesca pompilia, whom pietro and violante had asserted (even to one occupying a very high office) to be their own daughter. after a little while, she was taken to arezzo, the country of her husband, along with her foster-parents, and was restrained from leading her life with utter freedom. yet she has made pretence that she was hated on the pretext of sterility, as is clearly shown in her deposition during her prosecution for flight from her husband's home. both she and her parents took it ill that they were denied their old free life, and they urged their daughter to make complaint before the most reverend bishop, saying that she had been offered poison by her brother-in-law. at the departure of this couple, when they were about to return to the city, they most basely instigated her--yes, and even commanded her by her duty to obey them--that she should kill her husband, poison her brother-in-law and mother-in-law, and burn the house; and then with the aid of a lover to be chosen thereafter, she should put into effect her long-planned flight back to the city. (but all this should be done after their departure, lest they might seem to have given her evil counsel.) [such facts] may be clearly deduced from one of the letters presented as evidence in the same prosecution. when these pseudo-parents had returned home, they declared that francesca was not born of themselves, but had been conceived of an unknown father by a vile strumpet. they then entered suit before judge tomati for the nullification of the dowry contract. day by day the love of pompilia for her husband kept decreasing, while her affection for a certain priest was on the increase. this affair went so far that on an appointed night, while her husband was oppressed with sleep (and i wish i could say that she had no hand in this, and had not procured drugs from outside), she began her flight from her husband's house toward rome, nor was this flight without theft of money and the company of her lover. her most wretched husband pursued them, and she was imprisoned not far from the city. then, when after a short time they were brought to trial, the lover was banished to civita vecchia for adultery, and she herself was placed in safe keeping. but owing to her pregnancy she returned to the home of pietro and violante, where she gave birth to a child (and i wish i could say that it had not been conceived in adultery). this increased the shame and indignation of the husband, and the wrath, which had long been stirred, grew strong, because his honour among upright men was lost and he was pointed out with the finger of scorn, especially in his own country, where a good reputation is much cherished by men who are well-born. therefore his anger so impelled the luckless man to fury, and his indignation so drove him to desperation, that he preferred to die rather than to live ignominiously among honourable men. with gloomy mind, he rushed headlong to the city, accompanied by four companions. on the second night of the current month of january, under the show of giving a letter from the banished lover, he pretended to approach the home of the comparini. when at the name of caponsacchi the door was opened, he cut the throats of violante and pietro, and stabbed francesca with so many wounds that she died after a few days. while this desperation continued, his dull and unforeseeing mind suggested no way to find a place of safety. but accompanied by the same men, he set out for his own country along the public highway by the shortest route. then, while he was resting upon a pallet in a certain tavern, he was arrested, together with his companions, by the pursuing officers. great indeed is this crime, but very greatly to be pitied also, and most worthy of excuse. even the most severe laws give indulgence and are very mild towards husbands who wipe out the stain of their infamy with the blood of their adulterous wives. [citation of _lex julia de adulteriis, lex cornelia de sicariis_ and the gracchian law. cf. _ring and book_, i. .] this indeed was sanctioned in the laws of the athenians and of solon (that is, of the wisest of legislators), and what is more, even in the rude age of romulus, law , where we read: "a man and his relatives may kill as they wish a wife convicted of adultery." [citations; and likewise in the laws of the twelve tables, see aulus gellius, etc.] i hold, to begin with, that there can be no doubt of the adultery of the wife [for several reasons]. [first], her flight together with her lover during a long-continued journey. [citations.] [second], the love letters sent by each party; these cannot be read in the prosecution for flight without nausea. [citations.] [third], the clandestine entry of the lover into her home at a suspicious time. [citations.] [fourth], the kisses given during the flight (p. ) according to the following sentiment: "sight, conversation, touch, afterwards kisses, and then the deed [adultery]." [citations.] [fifth], their sleeping in the same room at the inn. [citations.] [sixth], the sentence of the judge, who condemned the lover for his criminal knowledge of her, which made this adultery notorious. [citations.] furthermore, we are not here arguing to prove adultery for the purpose of demanding punishment [upon the adulteress], but to excuse her slayer, and for his defence; in this case, even lighter proofs would be abundant, as matthæus advises. [citations.] these matters being held as proved, the opinion of certain authorities who assert that a husband is not excusable from the ordinary penalty, who kills his adulterous wife after an interval, does not stand in our way. for the aforesaid laws speak of the wife who had been found in her guilt and has been killed incontinently. hence such indulgence ought not to be extended to wife-murder committed after an interval, because the reins should not be relaxed for men to sin and to declare the law for themselves. [citations.] furthermore, farinacci does not affirm this conclusion, but shows that he is very much in doubt, where he says: "the matter is very doubtful with me, because injured honour and just anger--both of which always oppress the heart--are very strong grounds for the mitigation of the penalty." matthæus well weighs these words on our very point. and both farinacci and rainaldi conclude that the penalty can be moderated at the judgment of the prince. i humbly pray that this be noted. the aforesaid laws, which seem to require discovery in the very act of sin, as some have thought, do not decide in that way merely for the purpose of excusing a husband moved to slaughter by a sudden impulse of wrath and by unadvised heat. but they so decide lest on any suspicion of adultery whatsoever, oftentimes entirely without foundation, men should rush upon and kill their wives, who are frequently innocent. hence the "discovery in the very act of crime," which is required by law, is not to be interpreted, nor to be understood, as discovery in the very act of licence, but is to be referred to the proof of the adultery, lest on trifling suspicion a wife should be given over to death. but when the adultery is not at all doubtful, there is no distinction between one killing immediately and killing after an interval, so far as the matter of escaping extreme punishment is concerned. [citations.] for whenever a wife is convicted of adultery, or is a manifest adulteress, she is always said to be "taken in crime." [citations.] and in very truth the reasons adduced by those holding the contrary opinion are entirely too weak. for murder committed for honour's sake is always said to be done immediately, whensoever it may be committed. because injury to the honour always remains fixed before one's eyes, and by goading one with busy and incessant stings it urges and impels him to its reparation. [citations.] such relaxation of the reins to husbands, for taking into their own hands the law, would indeed be too great if the law of divorce were still valid. for in that case husbands would not be permitted to make such reparation of their honour. for another way would be satisfactorily provided for them, namely, in their right to dismiss and repudiate the polluted wife. in this way they could put far from themselves the cause of their disgrace, yes, and the very ignominy itself. but when by the divine favour our gentile blindness was removed, and matrimony was acknowledged to be perpetual and indissoluble, those were indeed most worthy of pity who, when all other way of recovering their honour was closed to them, washed away their stains in the blood of their adulterous wives. petrus erodus [citation], after he has discussed a matter of this kind according to the usual practice of roman law, adds in the end: "for as all hope of a second marriage is gone so long as the adulteress still lives, we judge that such very just anger is allayed with more difficulty, unless it be by the flight of time;" and therefore such a case, when not terminated by divorce, is usually terminated by murder. for as augustine says, "what is not permitted, becomes as if it were permitted; that is, let the adulteress be killed, that the husband may be released." i acknowledge that it is laudable to restrain the audacity of husbands, lest they declare the law for themselves in their own cause; since they may be mistaken. but it would be more laudable indeed to restrain the lust of wives; for if they would act modestly and would live honourably they would not force their husbands to this kind of crime, which i may almost call necessary. nor can we deny that by the ignominy brought upon them by the adultery they are exasperated and are driven insane, and a most just sense of anger is excited in their hearts. for this grievance surpasses all others beyond comparison, and hence is worthy of the greater pity, according to the words of the satirist [_juv._ x. ]: "this wrath exacts more than any law concedes to wrath." papinianus also well acknowledges this [citation], where we read: "since it is very difficult to restrain just anger." for these reasons, authorities hold that a just grievance should render the penalty more lenient even in premediated crimes; because the sense of "just grievance does not easily quiet down, or lose its strength with the flight of time, but the heart is continually pierced by infamy, and the longer the insult endures, the longer endures the infamy, yea, and it is increased." [citations.] and this drives one on the more intensely, because with greater impunity, as i may say, wives pollute their own matrimony and destroy the honour of their entire household. in ancient times, while the _lex julia_ was in force, wives who polluted their marriage-bed underwent the death penalty. [citations.] likewise it was so ordained in the holy scriptures; for adulterous wives were stoned to death, gen. ; lev. , ; deut. , ; ez. . the solace drawn from the public vengeance quieted the anger and destroyed the infamy. then the husband, who was restored to his original freedom, could take a new and honest wife and raise his sons in honour. but now, in our evil days, there is a deplorable frequency of crime everywhere, as the rigour of the sacred law has become obsolete. and since wives who live basely are dealt with very mildly, the husband's condition would indeed be most unfortunate if either he must live perpetually in infamy, or must expiate her destruction, when she is slain, by the death penalty, as matthæus well considers. [citation.] therefore, when it is claimed that the husband shall escape entirely unpunished, it is necessary that the wife be killed in the very act of discovered sin. but when the question is as to whether or not a husband may be punished more mildly than usual when driven to wife-murder for honour's sake, it makes no difference whether he kill her immediately or after an interval. [citation.] nor does this opinion lack foundation in the very civil law of the romans, for martian [citation] asserts that a father who had killed his son while out hunting, because he had polluted his stepmother with adultery, was exiled. nor had the father found him in the very act of crime, but slew him while out hunting, that is with a pretence of friendliness and by dissimulating his injury. accordingly he was punished, but not with the usual penalty; for he had killed his son, not in his right as a father, but in the manner of a robber. hence we can infer that not the killing, but the method of killing was punishable, as we may deduce from bartolo. [citations.] still further, it is well worthy of consideration that one may kill an adversary with impunity, for the sake of his personal safety, but he must do so immediately and in the very act of aggression, and not after an interval. for the life of one slain may not be recovered by the slaying of the murderer. accordingly, whatever violence may follow upon the first murder becomes vengeance, which is hateful and odious to the law; for the jurisdiction of the judge is insulted by depriving him of the power of publicly avenging murder. but if by the death of the slayer the one slain could be called back to life, i think there is no doubt that any one could kill the said slayer; for then such an act would not be revenge, but due defence, leading toward the recovery of the life that had been lost. but even when we are dealing with an offence and injury which does not affect the person of the one injured, it is likewise permitted that one who has been robbed may, even after an interval, kill the thief for the recovery of the stolen goods, provided every other way to recover them is precluded. likewise, one offended in his reputation should be permitted at all times to kill the one injuring him; for such an act may be termed, not the avenging of an injury, but the re-establishing of wounded honour, which could be healed in no other way. [citations.] furthermore, as i have said, when one is discussing the subject of self-defence, he is dealing with an instantaneous act; hence the anger conceived therefrom ought to quiet down after a while, according to the warning of st. paul, eph. : "let not the sun go down upon your wrath." but when we are dealing with an offence that injures the honour, this is not merely a momentary matter, but is protracted, and indeed with the lapse of time becomes the greater, as the injured one is vilified the more. therefore, whensoever the murder follows it is always said to have been committed immediately. [citation.] relying upon these and other reasons, most authorities affirm that a husband killing his adulterous wife after an interval, but not found in licentiousness, is to be punished indeed, but more mildly and with a penalty out of the ordinary. [citations.] caball testifies that this has been the practice in many of the world's tribunals. calvinus gives other cases so decided. [citation.] and cyriacus, who speaks in worse circumstances, adduces numerous other cases, and the authorities recently cited offer many more. this lenient opinion is the more readily to be accepted because, as i claim, the deed about which we are arguing does not also carry with it (as the fisc holds) attendant circumstances demanding such a rigorous penalty. [first] the taking of helpers to be present at the murders [is not such a circumstance]; because he could lawfully use the help of companions to provide more safely for his own honour by the death of his wife. [citations.] [secondly] the crime is not raised to a higher class because he led with him helpers at a price agreed upon; for what is more, and is far more to be wondered at, a husband can lawfully demand of others the murder of an adulterous wife, even by means of money, as the following indisputably affirm. [citations.] likewise it does not at all disturb [our line of argument] that count guido might have killed his wife and the adulterer when they were caught in the very act of flight at the tavern of castelnuovo, but that he preferred rather to have them imprisoned, seeking their punishment by law, and not with his own hand. we deny that he could have safely killed both of them, inasmuch as he was alone, nor could he attack them, except at the risk of his own life. because the lover was of powerful strength, not at all timid, and all too prompt for resisting, since, in the word of one of the witnesses in the prosecution for flight, he was called _scapezzacollo_ [cut-throat]. nor is it credible that, unless he had been fearless and full of spirit, he would have ventured upon so great a crime, and would have dared to participate in her flight, and to accompany the fugitive wife from the home of her husband. and this fact is more clearly deducible from one of his letters, in which, after urging francesca to mingle an opiate in the wine-flasks for the purpose of putting her husband and the servants to sleep, he adds that if they find it out she should open the door; for he would either suffer death with her or would snatch her from their hands. these things indicate both courage and audacity. and though the wife is a woman, that is a timid and unwarlike creature, nevertheless francesca was all too impudent and audacious, whether because of her hatred for her husband or on account of her anger at the imprisonment of her lover. for she drew a sword upon her husband in the very presence of the officers who were about to arrest her. and to prevent her from going further, one of the bystanders had to snatch it from her hands. therefore, before their imprisonment, guido could not put into effect what he had had in mind and what he could lawfully do, because he was alone and his strength was not sufficient. then when she had been taken to prison, and afterwards was placed in safe keeping, it was impossible for him to vindicate his honour. but when at last she had left the monastery and had gone back to the home of pietro and violante, he took vengeance as soon as he could. therefore we hold that he killed her in the very act, as it were, and immediately. in sanfelicius [citation], we read of a case where a husband, though he could have killed his wife immediately, did not do so, but craftily redeemed himself from his disgrace by slaying his wife as soon as possible. and giurba also speaks of a case where the argument is concerning an injury that was not personal, but real, as was said above. guido saw to her capture, and insisted that she be punished, lest she continue her adultery and viciousness, being powerless to do anything else, because his confusion of mind, his helpless fury, and his sense of shame led him unwisely into not taking the law into his own hands and recovering his lost honour. he indeed lodged complaint, but it was because he could not kill her. nor would his ignominy have been wiped out nor his infamy have been destroyed by her imprisonment and punishment. but when, indeed, after her imprisonment he was still more shut out from noble company, his injury ever became the more acute, and it stimulated him the more strongly to regain his own reputation. but his bitterness of mind was increased especially at hearing that she had gone back to the home of pietro and violante, who had declared that she was not their daughter, but the child of a dishonest woman; hence his injury was increased by her staying in a home which he suspected, as is said a little further on. accordingly the same cause kept urging him after her departure from the monastery, as had done so before her imprisonment and the appeals made by count guido. it makes very little difference that francesca was staying in the home of violante, which had been assigned to her as a safe prison with the consent of guido's brother. for what would it amount to even if with the consent of guido himself she had been taken from the monastery (yet we have no word of this matter in the trial). for guido could make that pretence to gain the opportunity of killing her for the restoration of his honour. nor would such dissimulation increase the crime, especially to the degree of the ordinary penalty, since it is certain that the husband may kill a wife stained with adultery without incurring such penalty. yet a heavier or lighter penalty is inflicted, just as more or less treachery accompanies the murder, as matthæus testifies it was practised in the senate of matrinumsis. [citation.] nor is the attendant circumstance of the place assigned as a prison worthy of consideration, as if the custody of the prince had been insulted; for one is not said to be in custody when he is merely detained in a place under security that he will not leave it. [citation.] furthermore, this objection falls utterly to the ground, because the circumstance of such a place does not increase the crime, whenever it is committed by one having provocation or for the repelling of an injury. and [the following authorities] hold thus in the more serious case of a crime committed in prison. [citations.] furthermore we do not believe, from what is said above, that the penalty can be increased because of the murder of pietro and violante, since the same injured honour, which impelled count guido to kill his wife, forced him to kill the said parents. and now may the ashes of the dead spare me if what i have urged above, and what i am about to say, may seem to disturb their peace! neither the flame of hatred nor the impulse of anger (which are far from me) have suggested these charges; but the demands of the defence, which i have assumed without a penny of compensation, compel me to employ every means leading to the desired end. i have said, and i think not without due reason, that the accused sprang forward to the death of both of them, moved simply by an immediate injury to his own reputation. for a few months after the marriage contracted with francesca, whom they had professed to be their daughter, they had not blushed to declare that she was not such. hence there is an inevitable dilemma. either [_first_] she was in deed and truth their daughter, and then we must acknowledge that in afterward denying her parentage they had inflicted the greatest injury upon the honour and reputation of the accused; for they had conceived strong hatred and malice against him. hence they did not hesitate to disgrace their own daughter, in order that they might bring upon him the infamy of having married the daughter of a vile and dishonest woman. this is indeed a fact, that whoever knows count guido supposes he has married a girl, not merely of rank unequal to his own, but even of the basest condition, and this greatly injures the reputation of his entire household. or else [_second_] francesca was indeed conceived of an unknown father and born of a dishonest harlot. and it cannot be denied, that in that case he suffered even greater injury, which branded him with a mark of infamy; both because of her birth and from the fact that daughters are usually not unlike their mothers. cephalus [citations], where we read: "from such mingling with harlots it is to be supposed that the people become degenerate, ignoble, and burning with lust." and would that experience had not taught us this fact! the unfortunate man believed he was marrying the daughter of pietro and violante, born legitimately, and yet by the contrivance and trickery of this couple he married a girl of basest stock, conceived illegitimately by a dishonourable mother. from this fact alone the quality of those parents can be inferred, who, for the sake of deceiving those lawfully entitled to the trust-moneys, had made most vile pretence of the birth of a child, entirely unmindful that they laid themselves liable to capital punishment. [citations.] it will not, therefore, be difficult to believe what francesca reveals in her letter to her brother-in-law, that the abovesaid couple, in spite of the fact that she was well treated, kept instigating her daily to poison her husband, her brother-in-law, and her mother-in-law, and to burn the home. and though these crimes are very base, they gave her still worse counsel, even by her obligation to obey them; namely, that after their departure from arezzo, she should allure a lover, and leaving her husband's home in his company, should return to the city. in her obedience to their commands, this daughter seemed indeed all too prompt. who then will deny that such reckless daring, wherefrom a notorious disgrace was inflicted upon the entire household of the accused, ought to be attributed to the base persuasion of the said couple? nor was it difficult to persuade that girl to do what she was prone to by inborn instinct and by the example of her mother. it is not my duty to divine why that couple so anxiously desired the return of francesca to their home. but i cannot persuade myself that they were moved by mere charity, namely, that she might escape ill-treatment. for francesca, in the said letter, acknowledges that she is leading a quiet life, and that her husband and the servants are treating her very well, and that what she had laid before the bishop had been the falsehood of the said couple. i know furthermore that if a husband have knowledge of the adultery of his wife and keep her in his home, he cannot escape the mark and penalty of a pimp. [citations.] if, therefore, as the said couple declare, francesca was not their daughter, why did they receive her so tenderly into their home after her adultery was plainly manifest? why did they, as i may say, cherish her in their breasts, not merely up till the birth of her child, but even till death? and i wish i could say that her love affairs with the banished [priest] were not continued there! for at his mere name, after the knocking at the door, as soon as they heard that some one was about to give them a letter from the one in banishment, immediately the door was opened and guido was given an entry for recovering his honour. if, indeed, the said couple had been displeased with the adultery of francesca, they would, without doubt, have shuddered at the name of the adulterer, and would have cut off every way for mutual correspondence. therefore it is most clearly evident that the cause of wounded honour in the accused had continued, and indeed new causes of the same kind had arisen, all of which tended toward blackening his reputation. nor does it make any difference that the accused may have had in mind several causes of hatred toward both francesca and the comparini. for if these are well weighed, they all coincide with, and are reduced to, the original cause, namely, that of wounded honour. however that may be, when causes are compatible with one another, the act that follows should always be attributed to the stronger and more urgent and more acute. [citations.] and on the point that when several causes concur, murder is to be referred and attributed to injured honour, and not to the others: [citations.] therefore i think that any wise man ought to acknowledge that guido had most just cause for killing the said couple, and that very just anger had been excited against them. this was increased day by day by the perfectly human consideration that he would not have married her unless he had been deceived by that very tricky couple. and to what is said above we may add that either the child born [of pompilia] was conceived in adultery, as the accused could well believe, since he was ignorant of the fact that his wife was pregnant during her flight; and then we cannot deny that new offence was given to his honour, or the old one was renewed, by the said birth; or the child was born of his legitimate father; and who will deny that by the hiding of the child, guido ought to be angered anew over the loss of his son? and the great indignation conceived from either cause (the force of which is very powerful) is so deserving of excuse that very many atrocious crimes committed upon the impulse of just anger have gone entirely unpunished. [citations.] the following text [citation] agrees with this, "nevertheless, because night and just anger ameliorate his deed, he can be sent into exile." [citations.] and not infrequently, in the contingency of such a deed, men have escaped entirely unpunished, who, when moved by just anger, have laid hands even upon the innocent. for a certain smyrnean woman had killed her husband and her son conceived of him, because her husband had slain her own son by her first marriage. when she was accused before dolabella, as proconsul, he was unwilling either to liberate one who was stained with two murders, or to condemn her, as she had been moved by just anger. he therefore sent her to the areopagus, that assembly of very wise judges. there, when the cause had been made known, response was given that she and her accuser should come back after a hundred years. and so the defendant in a double murder, although she had also killed one who was innocent, escaped entirely unpunished. [citation.] likewise, a wife who had given command for the murder of her husband because of just anger from his denial of her matrimonial dues was punished with a fine, and a temporary residence in a monastery, as cyriacus testifies. [citation.] such pleas might indeed hold good whenever the accused had confessed the crime, or had been lawfully convicted, neither of which can be affirmed [in our case]. but much more are they to be admitted, since he confesses only that he gave order for striking his wife's face, or for mutilating it; and if those he commanded exceeded his order, he should not be held responsible for their excess. [citations.] his fellows and companions give his name, and claim that he had a hand in the murders. and in spite of the fact that the fisc claims they have hidden the truth in many respects, equity will not allow that certain matters be separated from their depositions and that these be accepted only in part; for if they are false in one matter, such are they to be considered in all. it would be more than enough to take away from those depositions all credence that, under torture in his presence, they did not purge that stain. [citations.] it has very justly been permitted that in defence of this noble man, i should deduce these matters, as they say, with galloping pen. the scantiness of the time has not suffered me to bring together other grounds for my case; these could be gathered with little labour, and possibly not without utility. yet i believe that all objections, which can be raised on the part of the fisc, have been abundantly satisfied. giacinto arcangeli, _procurator of the poor_. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor in criminal cases_: _roman murder-case_ _on behalf of count guido franceschini and his associates, prisoners, against the court and the fisc._ _memorial of law by the honourable advocate of the poor._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord governor: from the "prosecution [for flight]," which was brought in this very tribunal, and by his honour, lord venturini, judge in this present case, there is more than satisfactory proof of adultery committed by francesca pompilia, wife of count guido franceschini, a nobleman of arezzo, with the canon caponsacchi. with caponsacchi the parents of this same francesca pompilia entered into conspiracy, although they were living here in the city. and after she had given an opiate to count guido and his entire household, she fled that same night from the city of arezzo toward rome. consequently, the canon, as may be remembered, was banished to civita vecchia, with a statement of his criminal knowledge of that woman in the said decree of condemnation. this adultery is also evident from other matters of evidence deduced by the procurator of the poor. there remains, accordingly, no room to doubt it, but rather their adultery may be said to be notorious here in the city, in the country of count guido, and throughout all etruria. since this is established, we can safely assert that even if guido had confessed that he slew his wife with the complicity and help of blasio agostinelli of the town of popolo, domenico gambassini of florence, francesco pasquini of the castle of monte acuto, and alessandro baldeschi of tiferno, he should not therefore be punished with the ordinary death penalty, but more mildly. this is in accord with the decision of emperor pius as related by ulpian [citation] and by martian. [citation.] for in both of them it is said that a man of low birth is sent into perpetual exile, but that a noble is banished only for a limited time, but the crime of a husband who is moved by just anger is overlooked, as this same ulpian confirms [citation], since it is most difficult to restrain such anger. [citation.] yet we should not consider it necessary that the adultery of the wife be conclusively proved (as it really is) in order that there be room for mitigating the said penalty. for it would be enough, if we were dealing with a case of mere suspicion: glossa, etc. "a man who had killed his son because he believed the young man had lain with his stepmother, as was true, was deported to an island." [citations.] dondeus also speaks of a man who had boasted that he wished to ruin the sister of the one who killed him, which is said to have aroused just suspicion and fear for the loss of honour sufficient to free the slayer from the ordinary penalty of murder. [citations.] nor is it true, as some authorities affirm, that the husband must take the wife in very adultery, and kill her immediately; in which case, they say the abovesaid laws hold good, but that it is otherwise if the murder is done after an interval. [citations.] for the contrary opinion is the truer, the more usual, and the one to be observed in practice, as marsilius well advises, where he speaks in defence of a certain nobleman who had killed another person after an interval. the man slain had betrothed his sister by promise and had kept her for three months, and had then rejected her. because of this, a great injury and much infamy were inflicted upon his family and the entire kin. marsilius then adduces the abovesaid laws, which pronounce concerning a husband who kills his adulterous wife; and bertazzolus offers the case of one who had killed his adulterous wife and had afterward, in his own defence, proved the adultery by the double confession of the same wife. claudius jr. testifies that the murderer was banished for a time by the praetor of mirandola, and after the lapse of several months he was recalled by the duke of mirandola. [citations.] afflitto cites the decree of the kingdom, beginning _si maritus_, which concedes impunity to a husband who kills his wife and the adulterer both, in the very act of adultery, and without any delay. he then says that if both of these requisites are not present, the husband is excused in part, but not entirely; and so is punished more mildly. and in no. he gives the reason; because whenever one commits a crime, under impulse of just anger, the penalty should be somewhat moderated, according to the aforesaid text. [citations.] matthæus [citation] adduces the excellent words of theodoric as quoted by cassiodorus [citation], where we read: "for who can bear to drag into court a man who has attempted to violate his matrimonial rights? it is deep-seated even in beasts that they should defend their mating even with deadly conflict, since what is condemned by natural law is hateful to all living creatures. we see bulls defending their cows by strife of horns, rams fighting with their heads for their wethers, horses vindicating by kicks and bites their females; so even these, who are moved by no sense of shame, lay down their lives for their mates. how then may a man endure to leave adultery unavenged, which is known to have been committed to his eternal disgrace? and so if you have made very little false statements in the petition you offer, and if you have indeed only washed away the stain to your marriage-bed by the blood of the adulterer, taken in the act, and if you are looking back from your exile, which was evidently inflicted not by reason of a bloodthirsty mind, but because of your sense of shame, we bid you return from your exile; since for a husband to use the sword for the love of his sense of honour is not to overthrow the laws, but to establish them." dondeus says this interpretation is clearly proved by the authority of a glossa in the chapter: _ex litterarum_. [citation.] for in the text, when these words are used: "your wife taken in adultery," a glossa explains the word "taken" as equal to "convicted." marta says this opinion is much more just and equitable, and is commonly held. and muta (_dec. siciliæ _) in the end offers a decision of the supreme court of the kingdom, by which a husband was condemned to the galleys for seven years. this was on account of the accompanying circumstances; for he had had his wife summoned outside of the city walls by his son, and there had killed her; and afterward her body was found to have been devoured by dogs. dexartus testifies that it was thus decided in sacred royal court, in condemning a husband only to exile. sanfelix also tells us that certain noble young men, who had killed their wives, after an interval, because of strong suspicion of adultery, were absolved by the royal council of naples, in view of the quality of the persons concerned. in their favour, authorities of the highest rank had written, whose allegations this same author places under the said decision. and although some of these young men were condemned to the oars, he said that this punishment had been imposed because of the mutilation of the privates which followed; because those who do such things are considered enemies to nature. (_panimoll. dec. ._) and caldero, although in the preceding numbers he inclined toward an opinion contrary to ours, came over to our side when he saw that matthæus held that opinion. and the reason is very evident, for whenever such an injury is suffered by fine natures, especially among the noble class, it is ever present with them, and continually oppresses the heart, and urges it on to vengeance for the recovery of lost honour, as giurba well notes. [citations.] for this reason, it has always and everywhere been held in case of murder committed for honour's sake that there is no place for the ordinary death penalty, which should be mitigated at the discretion of the judge. and this rule has been followed, when the murder was committed after an interval, and even after a long interval. for the abovesaid reason, both grammaticus and gizzarellus affirm and hand down this opinion. the latter says that it has always been so adjudged by the sacred council of naples, and that this opinion has always been accepted by our ancestors. [citations.] it was so judged by the high court of the vicar, although it was dealing with a murder committed after two years, and by craft, by two brothers upon the adulteress in the presence of her sister's cousin. cyriacus also speaks of the murder of a husband by his wife, because he was keeping a mistress and was contriving against her honour; and there he said that since just anger has a long continuance, because of its extreme bitterness, vengeance should always be said to follow immediately. [citation.] another reason also is at hand, which is considered by the authorities, namely, that an injury, whereby the honour is hurt, is not personal, but real, and therefore can be resented at any time whatsoever, even after the lapse of a very long time, as giurba holds in our circumstances. [citations.] we have therefore a great many standard authorities who affirm, for most vital reasons, that murder committed, even after an interval, upon the person of the wife or of any one else, for honour's sake, ought not to be punished with the ordinary death penalty, but more mildly. furthermore, these authorities bear witness that the matter has been so judged in the tribunals with which they are acquainted. no attention therefore should be paid to the opposite opinion held by farinacci [citation]; for we plainly see that he speaks contrary to the common and usually accepted opinion in tribunals. [citation.] still further it should be noted that the same author in _cons. , num. _, holds the very opposite, basing his opinion especially upon a text in the law of emperor hadrian [citation], where a father had killed his son, who was not found in the act with his stepmother, but while out hunting and in the woods, that is, after an interval. and he was punished not with the death penalty, but by deportation. several of the above-cited authorities offer the decision of this text likewise in corroboration of this opinion of ours. our point is also proved by the fact that this same author in _quaest. _ is rather doubtful; and there he acknowledges that for this opinion of ours the reason given above is very strong, namely, that "injured honour" and "just anger" always oppress the heart. and so he says in such a case one should note the sense of the text in the law _non puto_ [citation], where modestinus, doctor of law, says that he thinks that one would not make a mistake who in doubtful cases should readily give this response against the fisc; and farinacci cites him so speaking. but one should be on his guard against what this same farinacci asserts: namely, that this opinion of his, so far as he could see, was the one more approved by the sacred court. for since this point of doubt, as he himself confesses, had not then been advanced, he could not judge what would be the outcome if it had been proposed. and indeed the wisest of the said high authorities do not give their assent to his opinion, but rather hold the contrary, which is favourable to ourselves, as is seen in the decisions they have given from time to time. for it was so held on march , , in the case of carolo falerno, who was condemned to an unusual penalty for the murder of francesco domenici; for he had found him coming out of a church, to which he had warned him not to go, as he was suspicious that the one slain was following his wife. in like manner with carolo matarazzi, august , , who killed his wife on the foolish grounds that he suspected her of illegitimate conception because of the absence of her menses; but this suspicion did not indeed correspond with the truth. and in law a matter may be even more mistaken and less observed by human intellect. [citations.] likewise in a murder committed treacherously with an arquebus upon the person of tomaso bovini by francesco mattucio of monte san giovanni, a person of the very lowest class, merely because of the attempted dishonour of his sister. the attempt of the one killed was proved by two witnesses on hearsay of the one slain. on september , , the penalty of life sentence to the galleys, to which the said mattucio had been convicted on strongest proofs on the preceding july , was moderated by the sacred court, before the right reverend father ratta, of blessed memory. with good right, therefore, this same farinacci is expressly confuted and overthrown by matthæus. [citations.] this opinion of ours is to be accepted the more readily when we consider that the husband is more stirred by the adultery of his wife than by the murder of his son. [citations.] yes, and even more than by the defilement of his daughter. [citation.] so that if a husband does not complain of the adultery of his wife, he is considered a pimp, as paschal holds, where we read recently: "adultery of the wife gives offence not merely to the husband, but blackens and stains the entire kin." [citations.] that this happened in the present case is plainly evident; for abate paolo, brother of guido, was compelled not only to leave the city, in which he had lived for many years with highest praise, but even to pass out of italy, because he was pursued undoubtedly by the greatest disgrace on account of this adultery. while he was carrying on guido's cause in the courts, he moved the laughter and sneers of almost all sensible and wise men, not to say of the very judges themselves, as usually happens in these circumstances. [citations.] nor would it stand in the way of what we have said above, if without prejudice to the truth, we should admit (as the fisc claims) that count guido killed his wife with the complicity and aid of the said blasio, domenico, francesco, and alessandro, assembled for that purpose; for he could do that in order to take vengeance upon her more easily and more safely. [citations.] [nor would it stand in our way if we admitted] that he had assembled the said men by means of money. [citations.] nor does this plea of injured honour cease with regard to the murders of the said father-in-law and mother-in-law; for since their conspiracy in the adultery of their daughter is established, they themselves were among the causes of the injury and ignominy which resulted therefrom to the prejudice of the honour and reputation of count guido, their son-in-law, and her husband respectively. therefore, these murders likewise ought to be punished with the same penalty as the principal, according to texts in the law _qui domum_. [citations.] and so they gave cause enough to count guido to take vengeance on them. it is to be added, furthermore (as will be proved indeed, and as count guido himself has asserted in his testimony), that they themselves did another injury to his reputation by means of the civil suit which they brought on the grounds of the pretended birth of francesca pompilia; and not merely here in the city, but also in his own country, they distributed the most bitter libels, which were added to this same lawsuit. hence it cannot be denied that count guido for this reason had conceived a just anger and provocation, and that he had just cause for taking vengeance. this is according to the text [citation], where alexander the third wrote to the bishop of tournay that a certain woman who had killed her child should be placed in a monastery, because she was reproached by her husband with the accusation that it had been conceived in adultery. for in crimes where anger does not entirely excuse, still the delinquent who kills in anger conceived from just grievance is somewhat excused. [citation.] and this is true in spite of the fact that the fisc may claim that the penalty given in the constitution of alexander has been incurred. for in the present case the crime cannot be said to have been committed on account of hatred aroused by the lawsuit; for in that suit count guido had gained a favourable sentence from judge tomati, which was sanctioned by the supreme tribunal of justice. but the crime was committed indeed because of his just indignation. and this arose, first, from the ignominy growing out of the said pretence as to her birth; second, from the provocation given by the comparini (now slain) in issuing and distributing the said papers; and, third, from their conspiracy in the flight of his wife. for indeed this constitution of alexander does not apply where no guile is present and where some provocation has been given by the one hurt. farinacci very fully affirms this throughout _cons. _, where in the end he places the complete decision of the sacred court. in any case, since with count guido two causes for committing crime concurred: one the aforesaid matter of the lawsuit, another wounded honour because of the lawsuit brought and the flight in which they conspired, wherefrom the adultery had followed, the cause of honour should be given attention, as it is the graver and consequently the more proportionate to the crime. [citations.] likewise the penalty should not be increased in view of the place of the crime, because the defence of one's honour is so justifiable, and the anger and commotion of mind arising therefrom is so just, that reason for it cannot be demanded, as merlin pignatelli [citation] holds, because giovanni francesco de carrillo [citation] speaks of an insult offered in prison. and no. approves the decision for the reason that greater reverence is due to churches and other places consecrated to god, and in which the king of kings and lord of lords dwells in essence; and yet one who commits crime in them from just anger and grievance is excused; for he asserts that all canonists and other authorities there alleged by him unanimously acknowledge this. more readily, therefore, should this conclusion follow in our case, since the said francesca was not staying in a formal prison, but was merely keeping her home as a prison, under security of scudi, that she would not depart therefrom; because one who has given bond and has sworn not to leave a place is neither in chains nor in custody. [citations.] lucano holds that there are differences between being kept in chains and being committed under bond, etc. and farinacci holds that the word "custody" should be more strictly interpreted than the word "chains." [citations.] even if, therefore, count guido had confessed that he killed his own wife, his father-in-law, and his mother-in-law, with the complicity and aid of the above-named helpers, he should not be punished with the ordinary penalty, for reasons given above. and much more readily should we follow this opinion since we can see that he confessed only that he gave commands for mutilating his said wife (_ad sfrisiandum_), if i may use the word of the authorities. in this case he is not to be held responsible for the subsequent death of his wife and of the others. decian, _cons. , no. _, in this very condition, holds that one giving orders can be punished only for the manner of committing the crime for which bodily punishment cannot be inflicted. thus far the fisc has been unwilling to rest satisfied with such a qualified confession. yet since he claims the right to torture the accused for proving some further pretended truth, the torture shall be simple; nor can the torment of the vigil be inflicted; because the constitution given out by pope paul fifth, of sacred memory, for the reformation of the courts of the city, stands in the way of that. this is included among his constitutions as the st. by this it was decreed that such torment could not be inflicted unless these two features jointly concur: namely, that the crime be very atrocious and that the accused be burdened with the strongest proofs. [citations.] but a crime is said to be "very atrocious" provided it is one for which a penalty more severe than mere death should be inflicted, such as useless mutilation, burning, and the like. _farinaccius qu. , num. _, etc. and such a death, as ignominious and infamous, has no place with the persons of nobles. [citations.] hence it is much less so here, because we are not arguing about the death penalty even, which does not enter into the present case for reasons given above. and gabriellus speaks to this effect on the point that such a crime may not be said to be qualified. what has been said in favour of guido, the principal, also stands in favour of the aforesaid blasio, domenico, francesco, and alessandro; because they cannot be punished with the ordinary penalty, but only with the same penalty as the principal. [citation.] baldo cites a case under the statute which shows that one under bann for a certain crime cannot be killed save by the enemy who had him put under bann; and he says that if the enemy has him assassinated, the assassin is not punished. and he gives this reason, that what is permissible in the person of the one giving the order should be held as permissible in the one to whom orders are given; and he says it had been so held in a case under that law. castro [citation] holds that when one is permitted under the statute to take vengeance upon a person who has given him offence, he is also permitted to assemble his friends, to afford him aid, and that they shall go unpunished, just as the principal does. he also asserts that jacobus butrigarus [citation], held thus, in _cons. _, where he speaks of the case of a husband who had assembled men to beat one who had wished to shame the modesty of his wife, he ordered his wife to pretend to give ear, and when the intriguer had come, murder was committed. and he says that men brought together in this way should be spared, because such an assembly was permissible for the husband, who was principal. [citation.] jason holds that in any vengeance permitted by law, one cannot demand it of another; yet he to whom it is permitted may take fellows and accomplices with him for the same act, and if they kill in company with him they shall not be held to account for the murder nor for the aid they have given; and he says that this opinion should be much kept in mind. cæpollinus also illustrates this in several cases, especially in that of certain men who had killed one keeping the company of the sister of the man who had assembled them; and he says that they should not be punished, just as the principal was not, and he gained his point so that it was thus adjudged. [citations.] soccini also holds it should be thus adjudged, unless one wishes to say that they should be punished with a slighter penalty than the principal, as often happens in the case of auxiliaries. and he speaks in our very circumstances of men assembled by a husband for the sake of killing one who had polluted his wife. in these same circumstances, see also parisius. [citation.] carera [citation] speaks of a father who had his daughter (who had been keeping bad company) killed by an assassin; and he says that neither the father nor the murderer are to be held to account. [citation.] marsilius also, after placing in the very beginning this principle that when one matter is conceded all seem to be conceded which lead thereto, draws inference therefrom for the present case and many reasons for it are adduced. cassanis also [citation] holds that men assembled in this way are not held responsible either for the murder or for the aid furnished, if they do the killing in the company of the principal. and in these same circumstances garzonus speaks, decision , throughout. nor does it stand in the way of our reasoning that one of the aforesaid defendants had inflicted wounds with his own hands, or had killed one of the victims; as francesco has confessed that he inflicted four or five wounds in the back of francesca pompilia. even in these circumstances the rule holds good that auxiliaries shall not be punished with greater penalty than the principal. and so affirm individually the following authorities among those recently cited. [citations.] and garzoni testifies that it was so adjudged in the said decision , where we read: "or he may have with himself associates for this act," and if they kill the adulterers in company of the principal they are held to very slight account, either for the murder or for the aid given, and it was so adjudged. and even in the more extreme case of one killing by assassination, and consequently in the absence of the principal, this is the opinion of baldo [citation], where we read: "and now it is inquired whether an assassin is ever punished, and i say he is not; because what is permitted in the person giving command is also permitted in the person commanded." castro [citation] also says: "because what i can do of myself i can have done through my helpers who are necessary for that purpose." and afflitto [citation] says: "either with one's own hands, or by help of another, even with the influence of money, and thus by an assassin; for baldo says on this same point: 'what is permitted in the person giving command is also permitted in the person commanded'; and he witnesses that it was so adjudged." [citations.] marta [speaks as follows]: "much more so because authorities affirm that a husband, who on account of fear cannot kill the adulteress, may even by the help of money demand of another that he kill her, and neither of them is then to be punished." but whatever caballus [citation] may say to the contrary, he bases his opinion upon castro and rollandus. castro, however, favours our opinion, as is to be seen in no. . rollandus should not be given heed; for when he offers this very same opinion about the statute which permits any one to take vengeance; and says that since this kind of permission is personal, it cannot be passed on from one to another, this opinion of his is expressly contrary to the teaching of baldo, castro, jason, and others, whom we have alleged above in paragraph _quae dicta sunt_. and since this opinion of ours is milder and more equitable, it should hold good, as jason decides on this point. [citation.] nor can the punishment be increased because of the alleged carrying of prohibited arms; because the latter offence is included then with the real crime. [citations.] in guazzin we read that this is so, even if for the carrying of the arms a greater penalty would be inflicted [than for the principal offence]. and so, whenever it is evident that the crime has been committed for honour's sake and for a just grievance, as in the present case, the carrying of the arms may go unpunished, or at least it should not be punished with a more severe penalty than should be imposed for the principal crime itself. thus policardus [citation] well affirms when speaking of arms which are considered treacherous by the banns. these claims should hold good more readily as regards domenico and francesco, who are foreigners, and are therefore not included in any of the apostolic constitutions or banns, which prohibit the bearing of arms under very heavy penalties. [citations.] especially since they are minors, as is made clear in the course of the trial, pp. and ; in which case they are likewise not bound by these constitutions and banns, which give judgment upon the crime of a minor. for the power to make and establish such regulations was lacking in the prince or public official concerned. [citations.] such are the matters which, in view of the excessive scantiness of time, i have been able to collect in discharge of my duty for the defence of these poor prisoners. nor do i at all distrust that my lords judges, when they see that too little has been said, will wish to supply and offer what is lacking out of the high rectitude for which they are distinguished. for this would be quite in accord with the decree of emperors diocletian and maximian, as related. [citation.] and they will follow the advice of hippolitus marsilius, famous in criminal proceedings, who says that a judge is obliged by his office to seek out grounds of defence for the accused. [citations.] desiderio spreti, _advocate for the poor_. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor in criminal cases_: _roman murder-case._ _in behalf of blasio agostinelli and his associates, prisoners, against the fisc._ _memorial of fact and law._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord: the plea of injured honour which redeems count guido from the rigorous penalty that should follow for the commission of murders, likewise urges mitigation of the ordinary penalty for blasio and the associates who had hand in the murder, even though it may be pretended that they were paid thereto. for it is taken for granted that we are dealing with a case far removed from assassination, because of the presence of a person who had real cause for vengeance, as the following authorities think in common. [citation.] there has been the strongest controversy among authorities as to whether a father or husband may demand of any one except his son the murder of his daughter or of his adulterous wife. and divided on the two sides of the question, they have contended strongly. [citation.] yet the majority are in favour of the affirmative and of the milder sentence; and often, in the event of such a murder, it has evidently been so adjudged. [citation.] but since this question lies outside of our line of argument, it would be vain and quite useless labour to take it up, nor is time to be wasted when we are so hard pressed for it. for we are evidently dealing with auxiliaries, assembled for committing homicide, according to the thought of the fisc. hence the conditions of a mere "mandatory" are not applicable; because of the immediate presence of the principal in the crime; for when he also lays hand to the crime, those who do likewise are not called mandatories, but auxiliaries and helpers. [citations.] furthermore, just as guido himself is freed from the death penalty because of the said plea of injured honour, so likewise are his allies and auxiliaries freed, as the following authorities unanimously assert. [citations.] those who are cited in support of the opposite view do not pronounce opinion in our peculiar circumstances, but speak of a husband demanding of another the murder of his adulterous wife, and not of auxiliaries who do the killing in company with the husband, as in our case. [citations.] in such contingency, auxiliaries who give aid to a husband while killing his adulterous wife have always enjoyed the same indulgence as the principal himself; that is, they always escape the capital penalty, and indeed go entirely unpunished. [citations.] nor does the distinction of caballus make any difference, where he holds that auxiliaries may indeed assist with impunity a husband or a father killing a wife or daughter respectively, in order that these may kill the more safely; but that they cannot lend a hand and actually kill; for in the latter case they are to be held accountable for the murder. because, for foundation in making such a distinction, he plants his feet upon paolo de castro. [citation.] but this is so far from proving his purpose that it rather turns back on him remarkably to his own injury. for after the latter sets before himself this kind of a difficulty, under no. , he adds: "but i hold entirely the contrary: that neither the one who did the killing nor he who made the assembly (as it may be called) are to be held for the murder for the purpose of inflicting the capital penalty." this is also true in the council of rollandus a valle. [citations.] may that learned authority pardon me; for even if he does attempt to confute paolo de castro in the said th council, which is in our favour, under the pretext that he speaks contrary to the common opinion, this claim does not suffice in view of the above-cited authorities. and if there were time, i would demonstrate this more clearly. furthermore, rollandus alleges parisius, _cons. , lib. _. but he could well omit that, because no. proves expressly contrary to him on its very face, where it says: "under our very conditions was given that excellent decision of paolo de castro in the before-cited council. in stronger circumstances (which also include the present case) he concludes that those who knew of, or were present, or were associated with a husband in the act of the said murder, and who furnished him aid, ought not to be punished with a greater penalty than the principal, according to the rule concerning auxiliaries, beside the accurate authority of marsilius." and he concludes that at the very worst, when the utmost rigour of it is considered, they should not be punished with more than a temporary banishment. furthermore, rollandus in the said council is expressly confuted by facchinus. [citation.] nor is this without vital reason. for just as a qualification that modifies a crime in the principal delinquent increases it also for the auxiliaries, whenever they are aware of it, so all sense of equity demands that a qualification that diminishes the penalty for the principal, even though it be unknown to the auxiliaries, shall act in favour of them also. [citations.] hence caballus remains without a stable foundation, and is opposed to the opinion of the many doctors here alleged, who make no distinction between those who simply assist and those taking a hand in the murder; and indeed all of them speak of auxiliaries. furthermore, it is found that this has often been the judgment, even in the more extreme circumstances of one commanded to a murder, as was said above. and so strong is the plea of injured honour that not only does it extend its protection to mere mandatories, but even to mandatories whose case is modified by the circumstance of assassination. and it causes them to be absolved, as we find that it was so decided. [citations.] hence if both mandatories and assassins are redeemed from the ordinary death penalty, whenever they kill an adulteress at the command of the husband, it necessarily follows that the distinction of caballus is not a true one, nor is it accepted in practice. for if they are mandatories, we cannot deny that they may kill with their own hands; and nevertheless, not to speak of the other decisions cited above, clar. [citation] testifies such a decision favourable to the accused was handed down, contrary to the opinion of caballus. if, therefore, blasio and his fellows are not to be punished with the death penalty for affording aid in the murders, vain is the question whether they can be subjected to the torment of the vigil for the purpose of having the very truth from their own mouths. for this procedure demands two requisites: one that the most urgent proofs stand against the accused, and the other that the crime be very atrocious, according to the prescript of the bull. [citations.] and although the powers of this tribunal are very great for the dispensing with one of the said requisites, yet i have never seen the said torment of the vigil inflicted unless when there was no doubt that the crime, for which the fisc was trying to draw confession from the accused, deserved the capital penalty. we cannot believe that the prosecution expects to make a case to this end because of the pretended conventicle; since those who are assembled are not to be held under the penalty for conventicle, but only the one who assembled them is so held, as baldo well asserts. [citations.] nor in this case can the penalty for the asserted conventicle be made good against count guido himself, since the cause for which he assembled the men aids him in evading the penalty; inasmuch as one may assemble his friends and associates for the purpose of regaining his reputation. [citations.] for this has been well proved, that whenever any one for just grievance assembles men to avenge his injury, he has not incurred the crime and penalty of conventicle. and although farinacci, _quaest , n. _, declares that this holds good provided the vengeance be immediate, but that it is otherwise if the vengeance be after an interval, yet i pray that it be noted that in either case, if it concern vengeance for a personal injury (in which conditions he himself speaks), and therefore when for an injury which wounds the honour, such vengeance is at all times said to be taken immediately. for such an injury always urges and presses, because it should be termed the restoration and reparation of honour (which the one injured in his reputation could not otherwise accomplish), rather than vindication and vengeance, as we believe was satisfactorily proved in our other plea in behalf of count guido. but all further difficulty ceases with this consideration: prosecution can be brought for conventicle, if the men were assembled for an evil end and no other crime followed therefrom; but when, according to the sense of the fisc, they have been called together for committing murders, and these are really committed, no further action can be taken as regards the prohibited conventicle, but rather for the murders themselves; for the assembling of the men tended to this same effect. [citations.] and it is for this reason more particularly; because when the beginning and the end of an act are alike illegal, the end is given attention, and not the beginning, as bartolo teaches us. [citations.] it is to be added still further, that the assembling of men is not illegal in itself; indeed it is possible for it at some times to be both permissible and worthy of approval, as in the cases related by farinacci. but it is illegal because of its evil consequences and the base end for which it is usually made. hence, as the assembling of men is prohibited, not in itself, but because of something else, the end ought to be considered rather than what precedes the end. nor should the rigorous penalty of death be inflicted at all upon domenico gambassini and francesco pasquini for the pretended carrying of arms of illegitimate measure; because they are foreigners and had not stayed long enough in the ecclesiastical state so that their knowledge of this law could be taken for granted. nor ought it to be inflicted upon the others; for even if the death penalty is threatened by the constitutions and banns for the bearing or retention of them; yet since the carrying of this kind of arms is not prohibited for reasons in itself, but because of the pernicious end which follows it, or can follow it; and because this bearing of arms was looking towards the said murders; and because these, although they are not entirely permissible, are not utterly without excuse, the crime of carrying such arms should be included with the end for which they were carried; because the one is implied in the other, nor may the means seem worse than the end. and although, according to the opinion of some persons, the penalty for carrying arms is not to be confused with the crime committed with them, whenever the latter is the graver, yet this seems to be so understood when a crime is committed with them which is entirely illegal and without excuse. but this is not so when the crime is deceased and extenuated, and indeed excused in part, because of the reason for which it was committed. in any case, the bearing of arms, according to common law, is but a slight crime. [citations.] although by special constitutions and banns the penalty has been increased almost to the highest possible point, yet this kind of increase does not change the nature of the crime. and just as in the eyes of the common law, torture is not inflicted for getting the truth from those indicted for the said carrying of arms, in view of the insignificance of the crime, in like manner it cannot be inflicted by the force of constitutions and statutes which have increased the penalty. [citations.] and this is especially true in the case of the torment of the vigil, which cannot be inflicted for a crime that is not in its very nature most atrocious, but that is held as such, so far as the penalty is concerned, merely by the strength of a decree. this holds good unless indeed the nature of that crime is changed according to the method of proceeding in it. [citation.] and we see in the banns of our illustrious lord governor that he expressly declared this, when he wished to proceed with the torment of the vigil in cases in which he could not proceed legally; that of a certainty he would not do so. nor would he indeed have done this, if he could have inflicted such tortures in the case of crimes which are not capital by common law, but are to be expiated with the death penalty by the rigour of the banns. giacinto arcangeli, _procurator of the poor_. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor in criminal cases_: _roman murder-case with qualifying circumstance._ _for the fisc._ _summary._ _at rome, in the type of the reverend apostolic chamber, ._ summary [pamphlet .] _no. ._--_the sworn testimony of a witness as to the poverty of said count guido franceschini and the miseries suffered by the signori comparini while they stayed in his home in the city of arezzo._ _june , ._ angelica, the daughter of the deceased pietro and johanna battista of castelluccio, in the diocese of arezzo, about years of age, was examined by me on behalf of pietro comparini, against any one whomsoever, and put on permanent record; as to which testimony, she took oath to speak the truth, as is seen below. i tell you in all truth, sir, that while i was staying in arezzo last january in the home of signora maddalena baldi albergotti, the chance was offered me to go and serve signora beatrice franceschini and her sons, etc. i decided to do so, and when i had gone to the home of the signori franceschini i spoke with the said signora beatrice. she drew me aside into a little room and told me that she would take me as a servant, but that i should never have any private dealings with the two old people who were in the house; one of them was signor pietro comparini and the other signora violante, his wife. she charged me still further that if either of the two old people chanced to call me into their chamber, i should not go without first asking her permission. on these terms i accepted the service. after i had entered thereupon, i noticed that signora violante stayed in her room most of the time, weeping, and though the comparini were stiff with cold, the room was without fire. hence i took pity on her, and without the knowledge of signora beatrice, i took the coals from my own brazier and carried them to her. but no sooner did i offer them to her than signora violante ordered me out of the room, lest signora beatrice might take offence that i had done this act of charity. also, once among the many times, when signora beatrice found it out she made me leave the coals in the fireplace and snatched the shovel from my hands, and threatened me, saying that if she had wished it she herself would have come to bring it; because she did not want me to do any service whatsoever for the said signori comparini. and the comparini could not even speak among themselves, because signor guido franceschini, the canon girolamo his brother, and signora beatrice, their mother, would stand at one door or another of the apartment and listen to what the said signori comparini were saying to one another. this occurred every evening and morning until the said signor pietro left the room and the house. and when he returned at night they were unwilling for me to make a light for him on the stairway. and once when signor pietro came back home about half-past six in the evening, and i heard him scrape his feet, i took up the lamp to go and meet him. but signor guido noticing that, snatched the lamp from my hands, telling me that i had better keep still, and that i had better not approach unless i wished to be pitched out of the window. and this seemed all the worse to me, because when i first entered upon the service of the said franceschini i had heard it said around the house that one evening, as signor pietro was coming back home, he had fallen, while ascending the same steps without a light, and that he had made a very ugly bruise, because of which he had had to keep his bed for many days. at the same time, while i was in the said service, it chanced one morning at breakfast that the franceschini gave some offence to signora violante, because of which a mishap befell her. for no sooner had she reached her own room than she threw herself into a straw-chair and swooned away. when signora francesca pompilia, wife of the said signor guido, found it out, she began to weep and to cry out with a loud voice, saying, "my mother is dying." whereupon i ran to signora violante and began to unlace her, and turned to bring her a little vinegar and fire. but because there was no fire i took some wood and put it in the fireplace to kindle it. when signora beatrice saw this she snatched the wood from the fire, in great anger, and told me to take the ashes, which were quite enough to warm her feet. so i took the ashes that were in the fireplace, but because of the intensely cold weather they were cool when i reached the room where the signora violante was half dead. accordingly, the signora pompilia and i, both of us weeping, unclothed signora violante and put her in the bed, which was as cold as ice. and because i was crying when i returned to the kitchen, after having put signora violante to bed, signora beatrice said to me: "do you want me to take a little hemp and wipe your eyes?" signora francesca pompilia also heard this, and she made some complaint to signora beatrice who did not want me to return to the room again nor to make a little gruel, as signora violante had ordered. it happened a few days later, during the month of february following, that while the signori franceschini, francesca pompilia, signor pietro, and signora violante were at the table, they began talking of their purpose of sending me away, as the franceschini had already dismissed me from service. when signora francesca pompilia, who was at the table with the others as i have said above, heard this, she remarked to signor pietro and signora violante: "do you know why they wish to send her away? they believe she wished to censure me because signora beatrice said some days ago that she would take hemp and wipe the tears from her eyes, when she was weeping over the accident that happened to you, mother." then signor pietro spoke up and asked the signori franceschini to keep me in their good graces for eight or ten days more, for if he wished to return to rome with signora violante he would take me with them. and he said he could expect this favour at their hands, as it was the first he had ever asked of them. to this, none of the franceschini replied; but signor guido rose from the table and, approaching me, gave me two very good licks. the others then came up. while he was doing this, the canon, his brother, also gave me some kicks, and his mother struck me and told me to leave at once. as soon as signora violante saw and heard this she took pity on me and exclaimed to the said signori: "where do you wish the poor thing to go now?" and all the franceschini with one accord said to signora violante: "you get out with her, too." and they called her "slut," and other insulting names, so that signora violante went to her room to put on her wraps. the canon drew a sword and ran after her into the room and shut the door. i, fearing that he would inflict some wounds upon signora violante, ran to enter the room and found that the canon had locked himself within. so myself and signor pietro and francesca pompilia began to weep and to cry out for help, thinking that the canon would kill signora violante there inside. and after some little time, i left the house, while the said couple and signora francesca pompilia were still making outcry to the signori franceschini. during all the time i remained in the service of the said signori franceschini at arezzo, as i have said above, i can say of a truth that every morning and evening at the table i served the said signori franceschini, signora francesca pompilia, signor pietro, and signora violante comparini. for the food of all this tableful, the franceschini bought on saturday a sucking lamb, on which they spent, at most, twelve or fourteen _gratie_. then signora beatrice cooked it and divided it out for the entire week. and the head of the lamb she divided up for a relish three times, and for the relish at other times she served separately the lights and intestines. during the days of the week when they ate there was no other sort of meat on the table to satisfy the needs of all the tableful. when he did not buy the lamb on saturday, as i have said, signor guido gave money to joseph, the houseboy, to buy two pounds of beef. signora beatrice herself put this to cook every morning, nor was she willing for the rest to meddle with it, and they ate therefrom at the table and carved for the evening meal. and because this meat was so tough that signor pietro could not eat it (as they had not cooked it enough), signor pietro did without eating meat, for the most part, and ate only a little bread, toasted and in bad condition, and a morsel of cheese. thus signor pietro passed the days when they bought beef. on fasting days he ate vegetable soup with a little salted pike, and sometimes a few boiled chestnuts. but always, whether on fasting days or not, the bread was as black as ink, and heavy, and ill-seasoned. then the wine which served for the table was but a single flask; and as soon as the wine was poured into this, signora beatrice made me put in as much more of water. and so i made out to fill the wine flask, half of it being water, and very often there was more water than wine. this flask she put on the table, and ordinarily it sufficed for all those eating, although at most the flask did not hold more than ½ _foghliette_ [half-pints] according to roman measure. furthermore, i say that, not many days after i had left this service, it was public talk throughout arezzo that signor pietro had gone home about half-past six in the evening and had found the street door shut so that he could not open it, and he was obliged to knock. when signora violante saw that no one about the house was going to open the door, she herself went downstairs to do so, but the door was locked with a key. and although she called signor guido and others who were in the house, yet no one stirred to go and open it. therefore signor pietro went to sleep at the inn, and in the morning returned to see signora violante and signora francesca pompilia. it was likewise said throughout arezzo that when signor pietro complained at having been locked out of the house by the canon, and when both signor pietro and signora violante reproached them bitterly about it, a new quarrel arose among them, and because of it both the signori comparini were driven out of the house. signora violante was received at the home of signor doctor borri, where she dined that evening and spent the night. and signor pietro went to the inn to dine and sleep. when i heard that, i went to the house of signor borri to see signora violante, but was not admitted. and the wife of signor borri told me to go and tend to my own affairs. for she did not wish the franceschini, who lived opposite, to perceive that i had gone there to see signora violante, as some disturbance might arise therefrom. then the next morning i went to the inn, where i had been told signora violante had gone to find signor pietro, but i did not find either of them, and was told by the host that they had gone out. so, not knowing where to find them, i returned to the home of signora maddelena albergotti, where i was staying. and i heard afterwards that both signor pietro and signora violante had returned to the inn, where they had breakfasted. then by the interposition of the governor of arezzo they were reconciled with the franceschini, and they returned indeed to the house of the latter. i heard also that the franceschini continued to maltreat and insult the said couple, as they had continually done while i was in their service. therefore they were finally obliged to leave arezzo and go back to rome. all the abovesaid matters i know from having seen and heard the ill-treatment, which the franceschini inflicted upon the comparini and the insults which they offered them and signora francesca pompilia; and likewise from having heard them talked about publicly throughout arezzo, where it is known to every one and is notorious, and where there is public talk and rumour about it. _no. ._--_various attestations as to francesca's recourse to the bishop and governor because of the cruelty of her husband and relatives._ _june , ._ to whomsoever it may concern: we, the undersigned, attest as true: that signora francesca pompilia comparini, wife of signor guido franceschini, has many and many a time fled from home and hastened now to monsignor the bishop, and again to the governor, and also to the neighbours, because of the continual scolding and ill-treatment which she has suffered at the hands of count guido her husband, signora beatrice her mother-in-law, and the signor canon girolamo her brother-in-law. we know this from having met her when she was fleeing as above, and from the public talk and notoriety of it throughout the city of arezzo. in pledge of which, have we signed the present attestation with our own hands this abovesaid day and year, etc. i, canon alessandro tortelli, affirm the truth to be as abovesaid, and in pledge thereto have signed with my own hand. i, marco romano, affirm the truth to be as abovesaid, and in pledge, etc., with my own hand. i, antonio francesco arcangeli, affirm the truth to be as is contained above, with my own hand. i, cammillo lombardi, affirm as is contained above, with my own hand. i, francesco jacopo conti of bissignano, affirm as is contained above, and in pledge, etc., with my own hand. i, urbano antonio romano, a priest of arezzo, and at present curate of the parish church of san adriano, affirm the truth to be as is contained above, and in pledge thereto have subscribed with my own hand. then follows the identification of the handwriting in due form, etc. _extract from a letter written by d. tommaso romani, uncle of guido franceschini, to pietro comparini in rome._ most illustrious sir, my most honoured master: i can not do less, etc., departure, she has been little like the signora francesca, etc.; she fled from home, and went into san antonio. and thither ran also signor guido, the canon, and beatrice, etc., in order that she might come back, and in that belief the signora francesca returned home, etc. yesterday, signora francesca and my sister were in the duomo at sermon. at its close, while she was going away and was near the gate of monsignore, francesca fled into the palace, which is very near by. this was about seven o'clock in the evening, and there was a fine row in the palace, etc. _extract from another letter written by bartholomeo albergotti, a gentleman, to pietro comparini._ most illustrious signor and most cherished master: at my return, etc., the signora, his wife, has been melancholy, and two evenings after your departure, she made a big disturbance, because she did not wish to go and sleep with signor guido her husband, etc. the day before palm sunday, the signora went, etc., to preaching, etc., and in leaving there, she rushed into the palace of the bishop, etc. she took her station at the head of the stairs and stayed there until half past six in the evening; and neither signora beatrice nor signor guido were able to make her return home. yet the bishop did not give her an audience, but his secretary hastened thither and urged signor guido and signora beatrice not to scold the signora his wife, etc. and after quite enough of such disputes, they took her back home, etc. _no._ .--_deposition of francesca as to the letters asserted to have been written by her to abate franceschini, and previously outlined by her husband; recorded in the prosecution brought for her pretended flight._ _march_ , [for may.] francesca comparini, when under oath, etc., when questioned whether she had ever sent any letter to abate franceschini here in the city, while she lived in arezzo, replied: while i was in arezzo i wrote at the instance of my husband, to my brother-in-law abate franceschini here in rome; but as i did not know how to write, my husband formed the letters with a pencil and then he made me trace it with a pen and ink it with my own hand. and he told me that his brother had taken pleasure in receiving such a letter of mine, written by myself. this happened two or three times. when questioned whether, if she should see one of the letters written as is told above, and sent to the city to the same abate franceschini, she would recognise it, etc. she replied: if your honour would cause me to see one of the letters written by me, as above, and sent to abate franceschini, i should recognise it very well. and when at my command the letter was shown to her, about which there was discussion in the prosecution, and which begins _carissimo cognato sono con questa_, and ends, etc., _arezzo_ _giugnio_ , _affetionatissima serva, e cognata francesca comparini ne franceschini_. she responded: i have seen and have examined carefully this letter shown me by the order of your honour, which begins _carissimo signor cognato sono con questa_, etc., and ends _francesca comparini, ne franceschini_, and having looked at it, i think, but cannot swear to it as the truth, that this is one of the letters written by me to my brother-in-law, abate franceschini, in conformity [to my husband's wishes] as is said above. _no_. .--_the tenor of the letter written as above to abate franceschini._ dearest brother-in-law: i wish by this letter to pay my respects to you, and to thank you for your efforts in placing me in this home, where, far removed from my parents, i live now a tranquil life and enjoy perfect safety, not having them around me. for they grieved me night and day with their perverse commands, which were against the law, both human and divine: that i should not love signor guido, my husband, and that i should flee by night from his couch. at the same time they made me tell him that i had no congeniality with him and that he was not my husband because i have no children by him. they also caused me to run away often to the bishop without any reason whatever, and made me tell the bishop that i wished to be divorced from signor guido. and for the purpose of stirring up great discord in the home, my mother told the bishop, and signor guido, and then the entire town, that the canon my brother-in-law had solicited me dishonourably, a thing that had never been thought of by him. they urged me to continue these evil counsels, which were far from right and far from the submission due to my husband. and they left me at their departure their express command, by my obligation to obey them, that i should kill my husband, give poison to my brothers-in-law and my mother-in-law, burn the house and break the vases and other things, in order that in the eyes of the world it might not appear after their departure that it was they who had counselled me to commit so many crimes. and finally at their departure, they left me, as a parting command, that i should choose for myself a young man to my taste, and with him should run away to rome, and many other matters, which i omit for blushing. now that i have not her at hand who stirred up my mind, i enjoy the quiet of paradise, and know that my parents were thus directing me to a precipice, because of their own rage. therefore, now that i see in their true light these deeds proposed by the command of my parents, i pray for pardon from god, from yourself, and from all the world. for i wish to be a good christian and a good wife to signor guido, who has many times chidden me in a loving manner, saying that some day i would thank him for the reproofs he gave me. and these evil counsels which my parents have given, i have now made known, and i acknowledge myself your most affectionate servant and sister, francesca comparini _ne_ franceschini. arezzo, _june , _. outside directed to abate paolo franceschini, rome. [the deposition of pompilia is translated pp. - in its completer form as given in the summary for the defence. the only additional fact in this version is the date of the affidavit, monday, may , . she had been arrested at castelnuovo, may .] _no. _.--_attestation of priests and other persons, worthy to be accepted in all respects; who gave francesca, assistance even till her death; they speak of her honesty, and her declaration that she had never violated her conjugal faith_. i, the undersigned, barefooted augustinian priest, pledge my faith that inasmuch as i was present, helping signora francesca comparini from the first instant of her pitiable case, even to the very end of her life, i say and attest on my priestly oath, in the presence of the god who must judge me, that to my own confusion i have discovered and marvelled at an innocent and saintly conscience in that ever-blessed child. during the four days she survived, when exhorted by me to pardon her husband, she replied with tears in her eyes and with a placid and compassionate voice: "may jesus pardon him, as i have already done with all my heart." but what is more to be wondered at is that, although she suffered great pain, i never heard her speak an offensive or impatient word, nor show the slightest outward vexation either toward god or those near by. but ever submissive to the divine will, she said: "may god have pity on me," in such a way, indeed, as would have been incompatible with a soul that was not at one with god. to such an union one does not attain in a moment, but rather by the habit of years. i say further that i have always seen her self-restrained, and especially during medical treatment. on these occasions, if her habit of life had not been good, she would not have minded certain details around her with a modesty well-noted and marvelled at by me; nor otherwise could a young girl have been in the presence of so many men with such modesty and calm as that in which the blessed child remained while dying. and you may well believe what the holy spirit speaks by the mouth of the evangelist, in the words of st. matthew, chapter : "an evil tree cannot bring forth good fruit." note that he says "cannot," and not "does not"; that is, making it impossible to infer the ability to do perfect deeds when oneself is imperfect and tainted with vice. you should therefore say that this girl was all goodness and modesty, since with all ease and all gladness she performed virtuous and modest deeds even at the very end of her life. moreover she has died with strong love for god, with great composure, with all the sacred sacraments of the church, and with the admiration of all bystanders, who blessed her as a saint. i do not say more lest i be taxed with partiality. i know very well that god alone is the searcher of hearts, but i also know that from the abundance of the heart the mouth speaks; and that my great st. augustine says: "as the life, so its end." therefore, having noted in that ever blessed child saintly words, virtuous deeds, most modest acts, and the death of a soul in great fear of god, for the relief of my conscience i am compelled to say, and cannot do otherwise, that necessarily she has ever been a good, modest, and honourable girl, etc. this tenth of january, , i, fra celestino angelo of st. anna, barefooted augustinian, affirm as i have said above, with my own hand. _another attestation as above._ we, the undersigned, being interrogated for the truth, have made full and unquestioned statement on our oath, that we were present and assisted at the last illness from which francesca pompilia, wife of guido franceschini, died. she was often asked by her confessors and other persons whether she had committed any offence against the said guido, her husband, whereby she might have given him occasion to maltreat her in such a manner as to cause her death. and she always responded that she had never committed any offence against him, but had always lived with all chastity and modesty. and this we know from having been present during the said suffering, and from having heard all these questions and responses while we were giving her medical treatment, or otherwise assisting, and from hearing her respond to these questions, as above, during the four days while she was suffering from her wounds, as we have seen and heard her; and we have witnessed her dying the death of a saint. in pledge thereto we have signed this present attestation with our own hands here in rome this tenth of january, . i, nicolo constantio, etc., who assisted at the treatment of the said francesca pompilia during four days, attest as above, etc. i, fra celestino angelo of st. anna, barefooted augustinian, say that i was present from the first instant of the case, even to the end of her life, and was always ministering to her. she ever said, "may god pardon him in heaven as i pardon him on earth; but as for the matter they charge me with, and for which they have slain me, i am utterly innocent." in proof whereof she said that god should not pardon her that sin, because she had never committed it. she died as an innocent martyr in the presence of another priest, to the edification of all the bystanders, as i have affirmed above with my own hand. i, placido sardi, a priest, affirm with my own hand as the abovesaid father, fra celestino, has declared, having been present as above. i, the marquis nicolo gregorio, affirm as above with my own hand. i, the undersigned, affirm what is contained in the abovewritten statement, as well as in the attestation of the reverend father celestino of jesu and maria. i assisted the abovesaid signora francesca pompilia from the first, having picked her up from the earth where she lay in utter weakness because of her wounds. she had her head upon the legs of signor pietro comparini, who was already dead. she made confession in my arms to the principal of the greek college, because she could neither rise up nor lie down. and from that hour i never left her, but always ministered to her even unto her death. she was the most exemplary and edifying christian i have ever seen. for i saw her resigned to the divine will, and she always relied upon her own innocence, etc. i, giuseppe d'andillo, with my own hand. i, the undersigned, attest and affirm what is contained in all the said affidavits, from having assisted the said francesca pompilia, etc. dionysio godyn, with my own hand. i, luca corsi, affirm with my own hand as is contained in all the said attestations, from having assisted day and night as long as the malady of the former francesca pompilia continued, and from having heard as above. i, giovanni battista guitens, apothecary, who have assisted at the treatment and care of the said francesca pompilia, affirm with my own hand as is contained in all the above affidavits and attestations, from having assisted continually throughout a night and a day at the malady of the same. i, giovanni battista mucha, the boy of the said giovanni battista guitens, apothecary, affirm with my own hand as is contained above in the said attestation, from having assisted with the former francesca pompilia. full and unquestionable statement is given by me the here undersigned, abate liberato barberito, doctor of theology, that, as i was summoned to assist at the death of the said signora francesca comparini, i often noticed, and especially during an entire night, that the above-named defendant suffered the pains of her wounds with christian resignation, and condoned with superhuman generosity the offences of the one who had caused her innocent death with so many wounds. i also observed during the night the tenderness of the conscience of the above-named. for she passed it in showing the unwavering feelings of an heroic and christian perfection. and this so much so that i can attest that during the experience i have had, having been four years vicar in the cure of monsignor, the bishop of monopoli, of blessed memory, i have never observed the dying with like sentiments. and this is all the more so in an evil, caused so violently by another. therefore in pledge, etc. rome, this tenth day of january . i, abate di liberato barberito, affirm as above, etc. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases:_ _roman murder-case._ _in behalf of the fisc, against_ count guido franceschini and his associates_. _memorial of fact and law of the lord procurator general of the fisc._. _at rome, in the type of the reverend apostolic church, ._ romana excidii [pamphlet .] most illustrious and most reverend lord: the deplorable slaughter of the entire comparini family, which occurred in this dear city of ours on the second night of the current month of january, and the shedding of their blood, cries out from earth to god for vengeance upon the criminals. and in order that we may fulfil the obligations of the office we are occupying, we have paid down the price of toil to narrate here with faithful pen the series of events. from this, my lords judges may readily see what laws may be applicable for a decision as to this cause and for the punishment of the delinquents for the same deed, etc., and so barbosa says in his axioms in jurisprudence, axiom , no. : "just as from the deed the law takes its rise, so from the deed the law dies." the series of facts, therefore, is as follows: guido franceschini of the city of arezzo, married francesca comparini, for whom, by pietro and violante comparini, there were promised as dowry, among other matters, certain properties subject to a reversionary interest. for they had brought this same francesca up in their home as their own daughter, and as such they married her. then, as the aforesaid pietro and violante had no other children, they left their home in the city to go and live in the home of franceschini at arezzo. there, for some time, they continued to live together in peace; but, as often happens among friends and relatives, contentions and quarrellings arose. on account of these, the aforesaid pietro and violante left that home and the city of arezzo, and went back to rome. in the meantime, as the flame of this enkindled hatred increased, a lawsuit was instituted as to the dowry once promised, but now denied by pietro, on the pretext that francesca was not indeed the daughter of the same pietro and violante, but that, after a pretence of her birth had been made, she had been received and brought up by them. and for this reason the said guido and francesca could not hope for the inheritance of the properties under the reversionary interest. but although franceschini gained a favourable judgment on this point, yet when appeal had been made on behalf of pietro comparini, francesca declared that she was ill-treated in the home of her husband by himself, and therefore desired to leave that home. accordingly with the aid and companionship of canon caponsacchi, a relative of the said franceschini, as is supposed, she ran away. but franceschini had notice of his wife's flight and, following her up, he overtook her at the tavern of castelnuovo. there he went to the governor of that place and saw to effecting the capture of his wife and the canon, as indeed followed. then the quarrel was continued. a criminal suit was brought in this tribunal of the governor of the city; the process of action was arranged, and the counsel on both sides was often heard, both by word of mouth and in writing. at last it was decided that owing to lack of proof of adultery the said canon should be banished to civita vecchia and francesca should be held in safekeeping. but because the comparini claimed that the furnishing of food in the safekeeping was the duty of franceschini, and the latter declared it lay with comparini, the most illustrious lord governor, having first secured the consent of abate paolo, the brother of guido and his representative in the case, assigned the home of the comparini to francesca as a safe and secure prison under security. while these contests were still pending, both in the civil and criminal cases, as well as in that for divorce brought by francesca, the wife, this same franceschini schemed to take vengeance upon the abovesaid. for the execution of this criminal purpose he brought together domenico gambassini of florence, alessandro baldeschi of the region of castello, francesco pasquini antonii of the marquisate of monte acuto, and blasio agostinelli of the town of popolo, and dwelling at the villa quarata. he provided them with swords and dagger, prohibited by the bull of alexander viii., and entered the city in company with the aforesaid men. approaching the home of the comparini, at the first hour of the night, he secured the opening of the door to himself under the pretence of bringing a letter, sent to violante by the said canon caponsacchi, then staying at civita vecchia. as soon as the door of the home was opened by the said violante, the aforesaid guido and his companions immediately set upon her. she was cut to pieces with their swords and immediately fell dead. pietro likewise was cut down and died. francesca, however, tried to hide under a bed, but was found and wounded in many places. then, as if god granted her the favour, she was not left utterly dead, though after a few days she also passed away; and thus she could reveal this monstrous crime. as soon as my lord governor had notice of this, with most vigilant attention, he saw that the malefactors were pursued beyond the city. accordingly that same night, they were discovered in the tavern at merluccia with firearms and illegal swords, still bloody, and were taken back to prison. then, when a case had been made against them, they were examined as to the crime. some of them indeed confessed it, and although the others made denial of the management and knowledge of the killing of the entire family, yet against them there are most urgent presumptions of the knowledge and management abovesaid. furthermore, from the same prosecution the gravest proofs have resulted, such as can be but slightly attacked and controverted by the defence. hence, when this cause may be presented to receive judgment, we believe that no foundation can afford defence for the criminals to escape the capital penalty, so far as they have confessed their crime, or can release those who have denied it from the rigorous torture of the vigil. for what if the defence do strongly argue the question as to whether a husband who kills an adulterous wife, not immediately and when found in adultery, but after an interval, ought to be excused from the ordinary penalty of the _lex cornelia de sicariis_? some authorities indeed give an affirmative opinion for the excuse of the husband, as is to be seen in giurba. [citations.] yet all of these authorities for mitigating the penalty upon a husband who kills his wife after an interval are moved by this reason: that since the sense of injured honour always oppresses the heart, it is difficult to restrain just resentment; for this reason the defence of the honour is said to be immediate when done as quickly as possible. but there are indeed many other authorities who stand by the negative, asserting that a husband who kills his wife, otherwise than when taken in adultery and in acts of passion, should be punished with the ordinary penalty. [citations.] rainaldi [citation] says this opinion is the truer and the more advantageous to the state, nor should one depart from it in giving judgment. sanzio says that it was often adjudged in this senate that a husband was not excused by adultery legitimately proved, if he killed his wife after an interval; and for this reason, because formerly, according to the law of romulus, a husband could kill his wife, but the _lex julia_ permitted him to kill only the vile adulterer, as matthæus proves. [citation.] but in this our present show of fact we believe we are dealing with a matter outside of the difficulty of this proposed question. for the authorities cited above for the contrary opinion hold good, and should be understood to do so, whenever the contention is about a husband who has killed his wife without excess of law and with no concurring circumstances and aggravating qualities, and when moved only by just grievance. but it is otherwise when, as in our case, excess and contempt of law is present and aggravating circumstances and qualities concur. laurentius matthæus [citation] testifies that, according to common practice, such a distinction has been followed out. and after he had affirmed that a husband should be excused from the ordinary penalty and be punished more mildly, he adds: "for these reasons, it is the common practice to weigh the effect of the grievance and to punish only the excess; so that if the suspicion of guile in the manner of killing is present (as he considers any circumstance which tends toward treachery) the penalty is aggravated." the aggravating circumstances which concur in our case are indeed many, and they are so grave that any one of them is enough reason for imposing the death penalty or for qualifying the crime. the first of these is the assembling of armed men; for according to decrees of the governor of this city, the penalty of death and of the confiscation of goods is inflicted upon the one assembling the men; and this is true even if those assembled are but four, as is read in chapter of the same banns. this circumstance and quality cannot be evaded on the authority of certain jurists who assert that it is permissible for a husband to kill his wife, even by means of men thus brought together. for the said authorities speak, and should be understood, in a case in which a husband may kill with impunity an adulterer and his own wife in the very act of adultery, or in the home of the husband. but it is otherwise if she is killed after an interval, or outside of the home of her husband; according to what is given. [citation.] or these matters might hold good if in no other way he could kill the adulterer and his wife. so think all authorities who can be adduced in favour of the husband. this cannot be said in our case since franceschini, while following his wife with firearms, could have taken vengeance at the inn of castelnuovo. but he had recourse to the judge, and chose the legal way of punishing his wife and the canon with whom she fled. or these claims would hold good if he had assembled a smaller number of men, whereby the crime of conventicle would not have been established. and this is the more strongly to be held because we are not concerned with a deed that is unpunishable, and permissible by law, as i have said. nor do we believe that the defence can make a claim that the husband may kill an adulterous wife after an interval with impunity; for all the authorities who can be adduced in favour of the husband free him indeed from the ordinary penalty, but not from an extraordinary penalty, as those adduced by us above in § _hinc cum causa_ can be seen to hold. if therefore, in our case, the husband committed a crime punishable in itself, how could he assemble a number of men forming a conventicle prohibited by the banns, without incurring the penalty threatened by them? the second quality and circumstance is the carrying of arms contrary to the specification of the constitution of alexander viii., which is extended to the whole ecclesiastical state. still less can the authority of jurists be alleged in excuse from this threatened penalty, if the husband kill an adulterer and the wife with prohibited arms. for aside from the response given by us in the explanation of the first circumstance of assembling and of conventicle (namely that these authorities hold good and should be understood to apply only in cases permitted by law, and therefore unpunishable), we say still further that they have very little application as regards the arms we are discussing; since the said constitution prohibits not merely the carrying of such arms, but even their retention, manufacture, or introduction into the city and the ecclesiastical state, under the penalty of rebellion and criminal insult to the majesty of the law. and so far as we are acquainted with such cases as are permitted by law, the authority of these jurists should be understood to hold good concerning arms, the carrying of which is indeed prohibited, but not the retention and introduction under any pretext whatsoever, even the pretext of justice; as is included in this same constitution § , where we read: "or to carry them on any pretext whatever, whether of military service or of the execution of justice, and still less to keep them in one's home or elsewhere." and in § _ad haec_ it prohibits even the introduction of them: "the retention of them at home, in storehouses, and elsewhere, their introduction into the ecclesiastical state, and their manufacture." if therefore the retention and introduction of such arms is prohibited, even when on the pretext of executing justice, ridiculous indeed would be franceschini's pretence that he could approach the city and the home of his wife with such arms to vindicate after an interval this pretended offence of honour. this is the more certain as the crime concerning such arms is grave and of itself is punished with the capital penalty, as we have proved. in this case, when the crime actually follows, if the penalty for carrying the arms is greater than for the crime itself, the penalty for the graver offence is held to apply, and includes the lighter. [citations.] the third circumstance is that franceschini and the aforesaid men committed the murders in the very home and dwelling-place of the comparini; because homicide is always said to be qualified when it is committed in the home of the one slain; since the home should be a safe refuge for its master, etc. then also franceschini entered with changed garb; in which case the murder is said to be committed _ex insidiis_. [citations.] the fourth quality and circumstance is that the said francesca was under the power of the judge, since the home, as we have said in our narrative of fact, was assigned to her under bond to keep it as a safe and secure prison. and hence she was under the protection of the court. [citations.] and this is especially true when arguing in favour of the one who is under protection of the court, whatever may be said when arguing to his prejudice. and therefore the law holds that one under the protection of the court cannot be killed under less penalty than the death [of the assassin]. [citations.] but all debate seems to cease since it is proven in the process that the said franceschini approached the said home with his company of men with the thought and intent to kill not merely francesca, his wife, but also pietro and violante. these, as he himself acknowledges, he hated with a deadly hatred, because of the suit they had brought and because they had urged francesca to poison her husband and her brother-in-law, and had kept his wife in their home so that still further, in the continuation of the adultery, his honour was offended. but aside from this, as we have said above, francesca was placed in the said home by the authority of the judge with the consent of the brother of this same husband, and so the question does not enter as to whether a husband may lawfully kill the relatives, friends, and servants of his adulterous wife, even if he does suspect them of affording their leave or assent to the wife committing adultery; since the special rights and privileges conceded to the husband should not be multiplied against the wife, and be given greater scope, but rather should be strictly interpreted. [citation.] this holds good not merely when one is arguing about the prejudice of a third party, but concerning one's sole prejudice. [citation.] in our very circumstances we read that the permission cannot be passed from person to person. [citation.] yet we can more truly declare that such an assertion of adultery on the part of franceschini is calumniously false; for, in the very face of death, francesca protested, to the very damnation of her soul, that she had given no offence to her husband's honour. this protestation is the more to be believed since those about to die are not presumed to be unmindful of their eternal salvation. [citation.] the other causes adduced by franceschini himself, so far as they are true, can indeed prove hatred and enmity existing between himself and the couple, which would tend in that direction and so would serve to prove in him a cause for their premeditated murder. but this is not sufficient to excuse him from the ordinary penalty of death, which premeditated homicide altogether demands. [citations.] and it is for this reason, because the laws prohibit private vengeance (that is, vengeance which those without public office usurp to themselves because of their hatred, by killing or otherwise injuring men). [citations.] raynaldus affirms that in premeditated murder the ordinary penalty is inflicted not merely upon the slayer himself, but also upon all others who aid and give help, or concur in committing the murder by their help or council. [citations.] francesco gambi, _procurator general of the fisc and of the reverend apostolic chamber_. [file-title of pamphlet .] _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 his associates._ _memorial of the law in the case by the advocate of the fisc._ _at rome, in the type of the reverend apostolic chamber_, . romana homicidii cum qualitate [pamphlet .] most illustrious and most reverend lord governor: since the chief defence of count franceschini, the accused, as we have heard, consists in the pretended plea of injured honour, by which he was moved to crime, it is the office of the fisc to disclose the lack of foundation for this plea, in order that this atrocious and enormous crime may be punished with the due penalty. therefore i assume that we ought to examine the foundations on which the asserted plea of injured honour may rest; namely the flight of the unfortunate wife from the home of her husband in company with canon caponsacchi, with whom she was taken at the inn of castelnuovo, and the pretended love-letters which were put forward in the prosecution of pompilia for the said flight and departure. the pretended dishonesty of the wife is drawn from these two; but along with them other proofs were brought together in the said prosecution; the latter, however, are either altogether stupid or equivocal, or else unproven. this may be inferred from the dismission of the said francesca, his wife, merely with the precaution of keeping her home as a prison and of the canon with a three years' banishment to civita vecchia. such action shows that in this same prosecution there was found by the fisc no legitimate proof of dishonesty and of the pretended violation of conjugal faith, which the husband had charged against her. and indeed, from the defences then made and even from the trial itself, a very just cause has clearly appeared, which forced the luckless girl to flee from the home of her husband and to go back to her own home, there to live safely and quietly with her parents. notorious indeed are the altercations which, on account of the parsimony of the franceschini home, straightway arose between the parents of the wretched girl on the one hand, and the accused, his mother, and his brothers on the other hand. the former in vain bewailed the fact that they had been deceived by the show of no small opulence, on account of the false statement of an annual income of scudi, which was afterward shown to have no existence. indeed, while they stayed in the home of the accused husband in arezzo, they were so badly treated by himself and his relatives that after a few months they were obliged to leave it and return to the city. during the whole time they lived there, contentions and reproaches throve continually among them. the comparini were indeed excited with just indignation by the deception they had suffered. this is evident from the letters of abate paolo franceschini, which presuppose these troubles and which were considered for the defence by the procurator of the poor. these prove that hostility of mind had even then been conceived against the unfortunate parents, especially the one written march , where we read: "i write again to you that i do not wish to imitate him in his manner of writing, not being of his mind to sow broadcast in letters such words as would merit response by deeds and not by words. and these are so offensive that i have kept them for his reproof and mortification." and further on he says: "so that if you give us trouble, which i will never believe, you yourself will not be exempt therefrom." but sufficient proof results from the letters, as the following advise. [citations.] and although these letters do not make clear the nature of their altercations, yet some of them more than prove the reproaches had so increased that their bitterness grew into hatred as is evident from the letter of february , , where we read: "but hearing from the one side or other that the bitterness between them, not to say the hatred, is increasing." it would be all too easy for the accused and the abate, his brother, to prove, by showing letters written to him, that the reproaches were unjust and were occasioned by the comparini themselves. this is apparent from the tenor of the said letter, where we read: "because i feel that the enemy of god has put strife among them, it is improper that i should fulfil my duty toward you of a reply." but since the franceschini did not show such letters, the presumptive truth of these same complaints and of this cause of complaint and altercation is strongly against the ones thus concealing them. in such circumstances the roman court thus affirmed. [citations.] but the truth of the charge of ill-treatment toward the parents, whom he was obliged by the dowry contract to provide with food, is also to be drawn from the deposition of a servant, as given in the summary, no. . and since this would excite the pity of any who read, it becomes all the clearer that, by such very ill-treatment of her parents, the mind of the wretched wife was greatly exasperated; for she kept grieving in vain at seeing them thus troubled; yes, and she was even prohibited from grieving. and any one may know that the return of her parents to the city would indeed disturb with a considerable and very just grief this wretched child who was not more than fifteen years old. for she was destitute of all aid, and was left exposed to her husband's severity, because of which she daily feared that she was in peril of her life. in vain did she have recourse to the reverend bishop and to the governor, summary, no. . in vain was the interposition of certain noblemen tried; which had proved utterly useless, as is evident from the letter of march , where we read: "but what remedy can i give you, when so many gentlemen friendly to both parties have interfered to settle the troubles and it has not turned out well?" she might indeed think that no other remedy was left her than to flee from the abode of her husband and to seek again her father's home. as therefore she fled to escape deadly peril, her flight can afford no proof of dishonesty nor of the violation of conjugal faith; for it is attributable to a lawful rather than to a criminal cause. [citations.] but there was another urgent cause for her eagerly desiring to seek her father's hearth, namely the ill-health of her father. she speaks of this in the letter which mentioned that she cannot look for the company of gregorio guillichini, and that this task had to be remitted to the canon [caponsacchi]. hence we can well infer that she was arranging for the flight for legitimate reasons. no reliance whatever can be placed in the letter written by this same wife to abate franceschini. in that she thanks him for having joined her in marriage with the accused, his brother. and she also acknowledges therein that, since the departure of her parents, she was living a life of utter tranquillity; because their evil persuasion, which was alienating her from her husband, had ceased. she also reveals a very base plan that had been proposed to her, namely, to destroy the entire household. now the wife in her sworn statement frankly confesses that she wrote this letter to appease her husband, and that he had marked the characters, which she had afterwards traced with a pen. this statement is found in an extract from her sworn testimony as given in our summary, no. . and a mere reading of the said letter so thrills one with horror that it is incredible that the luckless girl could have written such matters to the injury and detraction of her own parents, unless she had been compelled thereto by fear of her husband. for this reason the same letter is given in our summary, no. . but even just ground of fear, because of which the luckless girl was moved to flee, has come to light, namely, the lawsuit brought by her father against the accused for the nullification of the dowry contract. this contract had been made on false grounds; for pietro had believed that he was promising the dowry to his own daughter, but then, from a confession made by the mother, he had found out that she was none such and that violante had made pretence of giving birth to the child for the purpose of deceiving her husband and barring his creditors. since pietro had assigned all his property as dowry (and indeed it was of considerable value when we consider the quality of the persons concerned) he soon raised a dispute about it. and we may well fear that very grave and even deadly hatred arose therefrom. thereby the conjugal peace, which had been disturbed by long-continued altercation, was utterly destroyed by recrudescent hatred. for a lawsuit as to a considerable amount of money, much more as to an entire property, would produce this effect, as daily experience well teaches us and as grammaticus and others assert. [citations.] such just fear should be well considered by a prudent judge, who will take into account the circumstance of the persons and of the time. [citation.] in our case it may be absolutely affirmed that these matters should be so considered, inasmuch as not merely a girl of tender age (as was the unfortunate wife, who was destitute of all aid and exposed to the severity of the husband, who had sought her life with a pistol and had threatened her with death on trivial suspicions), but even a woman of greatest fortitude would be unable to bear being exposed to such constant risk of her life and would see the necessity of taking care of herself. and whatever the cause, even if it were merely supposititious, it would be enough to excuse her according to the text. [citations.] and canon rainaldi holds, that it is enough if one see the signs or acts of manifest desire, or preparations thereto. how much more excusable and how worthy of pity should francesca be considered, since she had such an urgent and such a well-verified cause for fleeing? mogolon holds that the mere sight of arms, even though the one having them does not use them nor unsheathe them, is just cause for fear. nor can presumption of dishonour and of violated conjugal faith arise from the company of canon caponsacchi, with whom she fled, and for which flight he was condemned to three years' banishment in civita vecchia. for the luckless girl was destitute of all aid, and the demands of her age, of her sex, and of her station in life, did not admit of her undertaking so perilous a journey either alone, or in company with any baseborn woman. for then, in escaping dangers at home, she might incautiously expose herself to even graver perils; as might have happened if while alone she had been overtaken by her husband in the journey. nor could she find any safer companion than this very canon, who was bound by friendship to the canon conti. and the latter, who was a familiar friend and blood-relative of the accused, although he had great pity upon her condition, judged it safer for her to flee with caponsacchi, whom he believed to be apt and far-seeing to bring about the desired end. otherwise she would have undertaken this flight with even greater risk. therefore this necessary and prudent choice of the lesser evil excludes all suspicion of pretended dishonour. [citations.] this suspicion is also excluded by the manner in which the flight was put into effect, namely in hurrying to the city by the direct route and with the greatest possible speed. for if the unfortunate girl had fled for the purpose of satisfying her lust with the same lover, the canon caponsacchi (as was charged elsewhere and as is repeated now even more bitterly to prove the plea of injured honour), she would either have delayed somewhere out of the public highways, where she could not be seized by the accused, or she would not have approached the city with such great speed. she would have done neither of these, unless she were making the journey for the purpose of seeking again her father's hearth, where she hoped to find security for her life and her honour. it would be far too imprudent a plan for a lover to take a wife from the home of her husband to some other place where he could not possibly satisfy his lust. this improbability alone would be enough to prove the truth of the cause given by the wife in her affidavit--namely, that she had fled to avoid the deadly peril in which she feared she was placed, and that she might return to her father's hearth. the canon also gave her his aid and companionship out of mere pity, and her honour was kept entirely untouched. the probabilities are always to be very much observed in arguing about a crime, or in excluding it, as the following hold. [citations.] still less firmly established is the other ground for the asserted plea of injured honour, which has been offered elsewhere by the accused on the basis of the asserted love-letters. these letters, it was pretended, had been written in part by that most wretched girl to the canon, and in part by the canon himself. all these, it was claimed, had been found in the privy of the inn at castelnuovo, where they were said to have been cast for the purpose of hiding them. response was indeed then given by the procurator of the poor that the identity of the handwriting was unproved and uncertain; for the letters did not show to whom they were directed. and these responses were indeed admitted, since no punishment was inflicted upon francesca, and she was simply dismissed with the precaution of keeping her home as a prison. and even though these letters, when we investigate their hearing, seem to give proof of excessive goodwill, yet francesca could have made pretence of this for the purpose of winning over the canon, who was reluctant (as she herself acknowledges in her affidavit), to afford her aid by giving her his company back to the city in the execution of her premeditated flight. it is indeed quite evident that the letters were prepared for this purpose. (summary, no. .) and therefore this wretched girl, who was destitute of all aid and was placed in imminent risk of her life, should be judged worthy of all pity, if with gentle and even with loving words she tried to entice the canon, whom she believed was well suited to afford her aid. nor can stronger proof of violated modesty be drawn from these letters written for the purpose of the flight than from the flight itself. nor is it a new thing for the most chaste of women to use similar arts sometimes for quite permissible ends. in the sacred scriptures we read that judith did so to deceive holofernes, for the purpose of freeing her country. this luckless girl could therefore do so without any mark of dishonour, for the purpose of escaping deadly peril. we may speak still further of her confidence in her own continence as well as in the integrity of the canon. concerning this, a certain witness, examined by the fisc in the said prosecution at the instance of count guido, who was then present, testifies to hearing from gregorio guillichini (likewise a relative of the accused) as follows: "signor gregorio then added that the signor canon was going there for a good reason, and that therefore signora francesca had desired to go to rome. and he told me also that no ill could arise from it, because there was not the slightest sin between them." the deposition of this witness, which is directly contrary to the party who had brought her into court, fully proves our point as the following hold. [citations.] and therefore, since the luckless girl can be suspected of no evil from her association with canon caponsacchi, and since she had no other help more suitable for carrying out her plan, her dealings with him by letter ought to be excused as ordered to this end, even though we may read certain loving expressions in them. the latter, indeed, should be considered rather as courtesies adapted to winning his goodwill, and they should always be interpreted according to the thought of the one proffering them. [citations.] still further, there is added the participation of the canon conti, a nobleman and a relative of the accused, who forwarded the attempt. it is incredible that he would have been willing to plot against the honour of guido, but he would merely wish to snatch that wretched girl from imminent death because of his pity of her. and such participation is made clearly evident from the very letters which it is pretended were written by caponsacchi. of lighter weight still are the other proofs of pretended dishonesty; [first] the approach of the canon to the home of the accused at night time, for the purpose of speaking with the wife who was slain; [secondly] the kissing on the journey to rome, concerning which francesco giovanni rossi, driver of the carriage (commonly called calesse) bears witness; and [third] the pretended sleeping together in the same bed at the inn of castelnuovo. as regards the first of these three, there is defect of proof; for it rests upon the word of a single witness only, maria margherita contenti, and she endures the most relevant exception of being a public harlot, and so she alone can prove nothing. [citations.] and since such approaching of the house was ordered to the permissible end of removing the wretched girl from the imminent peril of death, by taking her back to her father's house, it cannot be brought as a proof of illicit commerce. for the mere possibility that it was done for this purpose is enough to oblige us to take it in good part, according to the text. [citations.] this is especially so since the very witness who swears to this approach of the home states, by hearsay from the said gregorio guillichini, that it was to a good end, and that no sin was taking place between the canon and the wife who is now slain. and, as guillichini was better informed, and was indeed a friend and, as i understand, a relative of the accused, this excludes all suspicion to the contrary. with this testimony another deposition seems to agree, namely, that of the canon franceschini, brother of the accused, who when questioned as to whether he knew if any intimacy had existed between canon caponsacchi and francesca, replied: "this we never knew of beforehand; but after the criminal flight the whole town said that there must surely have passed some correspondence between them." his ignorance quite excludes and renders improbable any furtive and illicit approach to the home by the canon caponsacchi. for if the accused had indeed threatened to kill his wife on account of unjust suspicion of caponsacchi, we may well believe that guido himself, his brother, and all the household would have kept guard for her safe keeping with all their might. and so, the said approach to the home, if it had been frequent (as is alleged), or if it had been for an ill end, would have been observed by them. [secondly] under this same defect of proof lies the pretended kissing of each other on the journey. as to this matter only a single witness testifies, whose excessive animus is shown by his assertion, for he asserts that he saw this at night; nor does he give any reason for his seeing it, such as that the moon was shining, or that he could see because some artificial light was dispelling the gloom. as no such reason is given, he deserves no credence, as the following observe. [citations.] another very great improbability is added thereto--namely, that while he was driving the carriage with such velocity that it rather seemed to fly than advance swiftly, he could not have looked back to see such mutual kissing. this improbability likewise takes away from him all right to belief, according to what the following hold. [citations.] but the assertion of that most wretched girl herself is also well suited to exclude all suspicion of her pretended unchastity. this was made by her after she had suffered many severe wounds in the very face of death itself, at the demand of the priests and other persons ministering to her. for, according to their attestation, she asserted that she had never sinned against her conjugal faith and had always conducted herself with all chastity and shame: "we were present and assisted at the last illness from which francesca pompilia, wife of guido franceschini, died. she was often asked by her confessors and other persons whether she had committed any offence against the said guido, her husband, whereby she might have given him occasion to maltreat her in such a manner as to cause her death. and she always responded that she had never committed any offence, but had always lived with all chastity and modesty." and fra celestino angelo of st. anna, of the order of barefooted augustinians, in his testimony, bears even more exact witness to this constant assertion of her innocence, where he writes: "she always said, 'may god pardon him in heaven, as i pardon him on earth, but as for the sin for which they have slain me, i am utterly innocent': in proof whereof she said that god should not pardon her that sin, because she had never committed it." an assertion like this, indeed, given in the very face of death, deserves all credence, since no one is believed to lie at such a time, as the following assert. [citations.] menocchius speaks in these very circumstances of one suspected of heresy, saying that such suspicion is removed if in the hour of death the accused say and protest that he had lived and wished to die and to trust according to what is pleasing to the sacred roman church, etc. [citation.] and decianus cites the opinion of albericus, who declares that by means of an assertion of this kind, made before the cardinals, the memory of pope boniface had been defended, and that this very albericus had in this way defended gian galeazzo visconti of milan. and this is more especially true since all the said witnesses agree that this most wretched girl died with the highest edification of the bystanders, and that she had always shown the deeds of christian perfection, as we find in the said attestations, where we read: "and from having seen her die the death of a saint." and there is another statement of the said father celestino angelo, which infers the innocence of her past life from her conduct just before death. all these matters are given in our summary, no. . but, however rightly the accused might draw some suspicion of his wife's dishonesty from her flight and from these letters, the tenor of which seems to prove them love-letters (which suspicion could excite due anger), yet this would not make excusable such truculent vengeance, taken after so great an interval. for this vengeance was taken, not merely upon his most wretched wife, but also upon her parents, who were entirely off their guard and quite undeserving of such a fate. and these murders were attended with such grave circumstances, aggravating the crime, that he would have to be punished with death even if he had not confessed the murders. for although just anger because of violated conjugal faith usually moderates the penalty for a husband killing his adulterous wife, yet one can no longer argue for total impunity after an opportunity to take vengeance on the adulterer and adulteress has been thrown away. [citations.] but an especial and indispensable requisite is that the wife be taken in adultery, according to the text. [citation.] "for thus it wishes this power to lie with the father, if he take his daughter in her very sin." labeo also approves this, and pomponius writes that she may be killed when taken in very licentiousness, and this is what solon and draco say. [citations.] much more does this hold good in the case of a husband, whose wrath may be kindled much more easily against a wife by sinister and unjust suspicion conceived about her. for the husband is not always accustomed to take good counsel for the wife, which the law presumes that the father does by natural instinct, etc.; and it excuses the father only when he kills his daughter along with her defiler, or inflicts wounds unhesitatingly upon her. and this is so true that it is not enough if the wife be found only in acts that are remote from, or merely preparatory to adultery, as authorities commonly affirm. [citations.] john teitops holds thus, and i think it well to quote his words, since the judges may not have him at hand, and he thus explains the words of the said text: "therefore they argue that acts preparatory to adultery do not suffice, but the obscene commingling of limbs is required." and after citing his authorities, he adds: "and this is more clearly evident from the words of solon as given by lucian, the eunuch," where we read: "unless they lie who say that he was taken in adultery." and then he criticises the opinion of accursius, who asserts that acts preparatory for adultery are enough. and in the second paragraph after this decision is given he asserts that his opinion should be understood to be concerning immediate preparations, and he so explains his decision, where he says: "from the taking of the adulterer alone and naked with her alone and naked, and lying in the same bed, violent and certain suspicion of adultery arises, wherefrom the sentence of divorce may be granted." but the laws adduced (at letters i & j) show that strong suspicion does not indeed suffice. for this sort of discovery is the true taking in the act of adultery. and from a civil case under the said letter, one argues weakly for proof in a criminal cause. for no one can be condemned, much less killed, on suspicions alone in the absence of law. and violent suspicion is not indubitable ground for proof, such as is required in criminal cases. but indeed such suspicion is fallacious, because persons might be found to act thus for the purpose of committing adultery, and yet not actually to have committed the adultery, as gravetta and others say. the accused might indeed have contended merely for the tempering of the penalty if he had killed his fugitive wife in the act of taking her at the inn of castelnuovo in company with canon caponsacchi. but when he neglected to take vengeance with his own hand and preferred to take it by law, he could not then kill her after an interval. this is according to the text [citation], which affirms that one can put off the vengeance from day to day. [citations.] farinacci asserts that it was so held in practice, lest men should be given the opportunity of avenging their own wrongs. and he confutes bertazzolus, who places on the same footing a case of taking in adultery, and says that the wife may be convicted of it provided that there be no doubt of it. nor may the suspicion of the husband, which gave a strong ground for the difference, be unjust or too ready. because just grievance, exciting a wrath which usually disturbs the mind of the husband, is verified by the actual taking of the wife in adultery, or in acts very near to it and not after an interval, although his suspicion may be very strong. and so the laws which excuse a husband because of just and sudden anger cannot be extended to cover vengeance taken after an interval. for in the latter case neither the impetuosity nor the suddenness of the anger is proved, but the murder is said to be committed in cold blood. but if for the purpose of restraining the impetus of raging anger, lest the husband take vengeance on his own authority, he is not excused from the penalty of the _lex cornelia de sicariis_, provided he kill his wife after an interval, how much less excusable will he be if, after choosing the way of public vengeance by imprisoning his wife and her pretended lover, he shall, after a long intervening time, slaughter her and her parents so brutally? it should be added, for increasing his penalty, that as regards the unfortunate parents there was no just cause for killing them unless he wishes to consider as such the lawsuit which they brought for the nullification of the dowry contract because of the detection of her pretended birth. but this cause rather increases the offence to the most atrocious crime of _læsa majestas_, because of the utter security which the pontifical majesty wishes to afford to all litigants in the city. this point is found in the well-known decree of alexander vi. where we read: "the inhumanity and savagery which thirsts for the death of others is horrible and detestable," and in the end we read: "in offence of the jurisdiction of his divine majesty, and to the injury of the apostolic authority." and, "they incur _ipso facto_ the sentence of the crime of _læsa majestas_." and a little later: "and they may always be distrusted in all their good deeds by every one, and may be held as banditti and as infamous and unfit." very worthy of consideration, also, is that other aggravation of this inhuman slaughter, namely, that it was committed in their own home, which ought to be for each person the safest of refuges, according to the text. [citations.] and cicero elegantly says: "what is more sacred, what is more guarded by all religious feeling, than the home of each of our citizens! here are our altars, here are our hearths, here are our household gods, and here the sacred ceremonies of our religion are contained. this refuge is so sacred to all that it would be base for any one to be snatched hence." much more is this true as regards the wretched wife, who was held in that place as a prison, with the approval also of the abate franceschini. and hence the public safekeeping may be said to be violated thereby, and the majesty of the prince wounded, since the same reasoning is observed as regards a true and formal prison, and a prison assigned by the prince, as the following assert. [citations.] finally, we should also consider the aggravation of "prohibited arms," with which the crime was committed. this of itself demands the death penalty, even though the principal crime should otherwise be punished more mildly, as sanfelicius advises, stating that it was so adjudged. [citation.] giovanni battista bottini, _advocate of the fisc and of the apostolic chamber._ [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases_: _roman murder-case._ _for count guido franceschini and his associates, prisoners._ _summary._ _at rome, in the type of the reverend apostolic chamber_, . summary [pamphlet .] _no._ .--_letter of the honourable marzi-medici, governor of arezzo._ my most illustrious and dearly beloved master: your favoured letter of the twenty-fourth of last month has reached me, and i am exceedingly sorry for the uneasiness in which you hint you are placed by the maledictions which signor pietro comparini and his wife have disseminated throughout rome, concerning the ill-treatment they say they suffered in your home while staying in arezzo. as your letter questions me for true information, i answer with all frankness, that both among the noble connection and in count guido's home they were treated with all respect and decorum. the cause of the first disturbance which sprang up between them and your mother and brothers was that signora violante, a few days after her arrival, presumed to domineer over the house and to keep the keys of everything, and in fact to turn out of house and home signora beatrice, your mother. with good reason, neither of the brothers was willing to consent thereto, and this gave occasion for the first insults and domestic broils. these afterwards increased when they saw that signor pietro had given over the company and conversation of the best people of the city, and had struck up acquaintance with the most vulgar. and with them he began to frequent daily all the taverns here. this cast discredit upon him, and was little for the good name of the franceschini. of much greater scandal were the many flights and petitions made by guido's wife, their daughter, to monsignor the bishop. these were made for no other reason than that neither she nor her parents wished to stay any longer in arezzo, but desired to return to rome. when she had been rebuked by that most prudent prelate, he always sent her home in his carriage. it is true that ever since the comparini left this city until the present time the signora has conducted herself with much modesty and prudence. from this fact every one infers that the poor child was led to such excesses by her parents, as she herself declares to everybody. now she detests even the memory of them. therefore, she is getting back into the good opinion of every one, and especially of those ladies of the city who had ceased having anything to do with her. finally, these same comparini had taken away all her jewellery from the signora, which i forced them to restore. altogether, such and so great are the scandals to which they have given rise before the whole city in the lapse of the few months they have stayed here, that i write you only a few of them. i assure you that with them your brothers have had the patience of martyrs. accordingly when i saw that they had become incorrigible, and were the talk of the town, and that they might force your brothers to commit some excess against them, for the maintenance of good discipline, i availed myself of the authority vested in me by his serene highness, and threatened them with prison and punishment unless they behaved themselves. after these threats, which they evidently merited and which might have overtaken them, they decided to go to rome, as they did a little later, leaving behind them in this city a very bad reputation. as for the rest, there is now in your home an utter quietude, and the signora lives with exemplary prudence, detesting the ill example she had shown the ladies of this city, and she confesses freely that it was so commanded by her parents. in my judgment, it is the hand of god that has freed your family from such turbid heads. this is all i can here put down, out of much else there is to say about it. therefore rest at ease, and believe me that the discredit has been entirely their own. i need only sign myself, with all my heart, to your most illustrious self, your most devoted and obliged servant, vincenzo marzi-medici. arezzo, _august , _. to signor abate paolo franceschini, rome. no. .--_deposition of francesca._ i will tell your excellency why i have fled from the home of my husband. here in rome, three years ago, i was married by my father and mother to the said franceschini, and after i was engaged to him he stayed here in rome for two months without consummating the marriage. then with my father and my mother i was taken by my husband to arezzo, because in the marriage contract it was agreed that my father and mother should go and live in arezzo, as they did. after they had remained there four months, they departed and returned to rome, because of the ill-treatment they suffered, at the hands not only of my husband, but of the others in his house. i was left behind in arezzo, and when about a year had passed after the consummation of the marriage, as i did not become pregnant my husband and my mother-in-law beatrice began to turn against me, because i had no children. he said that because of me their house would die out and that he could not hope for an heir by me after a while; for by chance he had heard my father say, that during a girlhood sickness certain seeds had been given to me as medicine, which possibly hindered me from having children. for that reason i came to be continually mistreated by my husband and mother-in-law, though i answered that i was not to blame for that. yet they continued always to threaten my life, and, without any real occasion, they sought every pretext to maltreat me. then my husband began to be jealous of me, and forbade me to show my face at the window. and to remove that occasion of jealousy i never showed my face save when it was absolutely necessary. so one day, while we were on the loggia, he said to me that i was staying up there to make love, without telling me with whom. i replied that these were mere pretexts, and that from that place one could see only the street, without looking into the windows of the houses; for the loggia was entirely on the roof. [sidenote: a. she tells of her husband's threats because of her ardour for her lover.] and then because the canon caponsacchi, with other young men of the place, used to pass before our house and stop to talk with certain hussies, who were standing there in front, my husband began to fume with anger at me because the said canon kept passing there as above, although i was not at all to blame. his suspicion increased all the more because, while we were in a great crowd at the play one evening, canon conti, the brother of the husband of my sister-in-law, threw me some confetti. my husband, who was near me, took offence at it--not against conti, but against caponsacchi, who was sitting by the side of the said conti. then because conti frequented our house, as a relative, my husband took offence at him likewise; and this so much so that i, being aware of it, retired to my room whenever he came to our house, that i might not have to take even more trouble; but my husband was not thereby appeased, but said that i did this as a trick, and that his suspicions of me were not removed. he began anew to torment me so, on account of caponsacchi, that i was reduced to desperation and did not know what to say. then to remove that occasion for his ill-treatment, i spoke to the said caponsacchi one day as he was passing our house and begged him not to pass that way, that he might relieve me from all the distresses i suffered at the hands of my husband on that account. he replied that he did not know whence my husband had drawn such a suspicion, as he used to pass along there on other affairs, and that, in short, guido could not stop his passing along the street. and although he promised me not to pass along there, he continued to do so. but i did not show my face at the window. yet with all this my husband was not appeased, but continued to maltreat me and to threaten my life, and he said that he wished to kill me. at the time of the affair of the play told above, as soon as we had returned home, he pointed a pistol at my breast saying: "oh, christ! what hinders me from laying you out here? let caponsacchi look to it well, if you do not wish me to do so, and to kill you." [sidenote: b. she died asserting that she did not know how to write.] furthermore at the beginning of these troubles, i went twice to monsignor the bishop, because he might have remedied it in some way; but this did no good, because of his relation with the house of my husband. and so as i was a stranger in that city and did not know how to free myself from these perils and abuses, and as i feared that if guido did not slay me with weapons he might poison me, i planned to run away and go back to rome to my father and mother. but as i did not know how to accomplish this, i went about a month later to confession to an augustinian father, whom they call romano. i told him all my distresses, imploring him to write to my father in my name, as i do not know how to write, and to tell him that i was desperate, and must part from my husband and go to him in rome. but i had no response. [sidenote: c. she confesses the strength and audacity of her lover.] [sidenote: d. she confesses a conversation with her lover.] [sidenote: e. she confesses a new conversation with her lover.] therefore, not knowing to whom i might turn to accomplish my desire, and thinking that no one in the place would assist me, because of their relationship or friendship to my husband, i finally resolved to speak of it to the said caponsacchi, because i had heard said that he was a resolute man. accordingly, as he was passing one day before our house, at a time when my husband was out of the city, i called him and spoke to him from the stairs. i told him of the peril in which i found myself on his account, and begged him to bring me here to rome, to my father and mother. he replied, however, that he did not wish to meddle at all in such an affair, as it would be thought ill of by the whole city, and all the more so as he was a friend of the house of my husband. but i implored him so much and told him it was the duty of a christian to free from death a poor foreign woman. at last i induced him to promise me that he would accompany me as above. then he told me he would secure the carriage, and when that had been arranged he would give me a signal by letting his handkerchief fall in passing before our house, as he had done before. but the next day went by, and although i stood at the blinds, he did not give the signal. when the day following had also passed, i spoke to him again as above, and complained to him that he had broken the word he had given me. and he excused himself, saying that he had not found a carriage in arezzo. i answered him that, at any rate, he should have procured one from outside, as he had promised to do. then the last sunday of the past month, he went by our house again and made the signal with the handkerchief, as he had promised. and so i went to bed with my husband that evening, and when i had assured myself that he was asleep i arose from bed and clothed myself. i took some little things of my own, a little box with many trifles inside, and some money, i know not how much there was, from the strong-box. these were, moreover, my own, as is evident from the list of things and moneys made by the treasurer of castelnuovo. then i went downstairs at dawn, where i found caponsacchi, and we went together to the porta san spirito. outside of it stood a carriage with two horses and a driver, and when we had both entered the carriage we journeyed toward rome, travelling night and day without stopping until we reached castelnuovo, except for them to take refreshment and to change the horses. we arrived at dawn, and were there overtaken by my husband as i have told heretofore to your honour. the said caponsacchi is not related in any degree to my husband, but was certainly a friend. [sidenote: f. the lie about the arrival at castelnuovo.] [sidenote: g. the lover is not a relative of her husband.] the said caponsacchi, before the said affair, did not send me any letter, because i do not know how to read manuscript, and do not know how to write. [sidenote: h. new lies, that she did not receive letters from her lover, and that she does not know how to write.] before the said affair, i did not at all send a letter of any sort to the said caponsacchi. [sidenote: i. another lie, that she did not send letters to her lover.] [sidenote: k. she does not know how to write, and her husband had traced the letter.] when again put under oath, she responded: while i was in arezzo, i wrote at the instance of my husband to abate franceschini, my brother-in-law here in rome. but as i did not know how to write, my husband wrote the letter with a pencil and then made me trace it with a pen and ink it. and he told me that his brother had much pleasure in receiving such a letter of mine, which had been written with my own hand. and he did this two or three times. if your honour should cause me to see one of the letters written by me as above, and sent to abate franceschini, i should clearly recognise it. and when it was shown, etc., she responded: "i have seen and carefully examined the letter shown me by the order of your honour, which begins--_carissimo sig. cognato, sono con questa_--and ends _francesca comparini ne franceschini_, and having examined it, it seems to me, but i cannot swear to it as the truth, that it is one of the letters written by me to abate franceschini, my brother-in-law, in conformity to my husband's wishes, etc." and after a few intervening matters, etc., when questioned, etc., she replied: "i have never sent letters of any sort by the said maria to any one." [sidenote: l. another lie about the arrival at the tavern of castelnuovo.] in all truth, i arrived at castelnuovo at the blush of dawn. we shut ourselves in there at the tavern of castelnuovo for the space of more than an hour. during that time we stayed in a room upstairs. [sidenote: m. new lies that she did not lie down to sleep at the inn of castelnuovo.] and after a few other matters, when questioned, she replied: "i did not go to sleep, nor lie down to rest in the tavern at castelnuovo during the time i stopped there, as above." i know that your honour tells me that the authorities pretend further that i slept all night in the abovesaid tavern of castelnuovo in an upstairs room, in which canon caponsacchi also slept. and i say and respond that no one can truly say so, because i did not rest at all in the said tavern, and stopped there only for the time stated above. [the letter of pompilia to abate franceschini occurs both here and in the summary of the defence. it is translated on pp. , .] no. .--_a letter of francesca written to abate franceschini._ outside: to abate paolo franceschini, rome; but inside: my very dear sir and brother: i have received the fan which you sent, which has been most welcome to me. i accept it with pleasure and thank you for it. it displeases me that, without reason, my parents wound the honour of our house. i for my part am well and am happy in not having them now to stir me to evil. i wish well to all our house, in the sacred fear of god. in fact you may well laugh at the maledictions of my parents. command me, who reverence you from the bottom of my heart. your deeply obliged servant and sister-in-law, francesca comparini franceschini. arezzo, _july , _. no. .--_the examination of canon caponsacchi._ i had to go to rome on my own business, and as i told my secret to giovanni battista conti, a relative of franceschini, who frequented the home of the latter, francesca might have learned about it from the same canon, although there was talk about town of my coming to rome, which was to follow soon. hence a letter, sent to me by the said francesca, was brought one day by a certain maria, then a servant of the franceschini. in it she told me that she had heard of my going to rome, and that, as her husband wished to kill her, she had resolved to go to rome to her father; and not knowing with whom she might intrust herself, she asked me to do her the service of accompanying her as above. i answered her that i was unwilling to do anything of that kind, or to expose myself to such a risk; and i sent her a reply by the same servant. i do not remember the precise time that she sent me the above letter. thereafter, when i passed the house, she continued making the same request to me, by flinging from time to time from the window a note that repeated the request. and i replied to her, sending the response by the same servant, and telling her that i did not care to involve myself in such affairs. and therefore she finally cast me another note from the window, which, as i learned, was seen by a working-woman living across the street, whose name i do not know, and she carried it to the husband. the same servant was then commissioned to tell me that there had been a great commotion in the house because of it, and that the sister of guido, who had been married into the house of conti, had declared furthermore that that servant had carried the letter to me. she also told me that guido said he was going to kill his wife in some way after a little while, and that he would also be avenged on me. accordingly, with this purpose, to free myself from every difficulty and danger, and also to save from death the said francesca, i resolved to leave for rome and to accompany her thither, conducting her to her father. and so one evening--i do not remember the exact time--as i was passing their house i gave her a letter, which she drew up to the window with a string. in it i told her that to free her from death i would accompany her as above. another evening she threw to me from the window a letter in which she renewed the above insistence, declaring to me that her husband was always threatening to kill her; she would therefore have to receive the favour of my company as above, of which i had spoken. and finally, the last sunday of the past month of april, while i was going by their house and she was standing at the window, i told her that i had secured the carriage for early the following morning, and that i would have it await her at the gate of san clemente. accordingly, at about one o'clock in the morning, she came alone to the said gate. we entered the carriage and turned along outside of the city wall to go to the gate of san spirito, which is in the direction of perugia. this carriage belonged to agostino, tavern-keeper in arezzo, and a driver, surnamed venarino, the servant of the said agostino, drove it. i had had him leave the city sunday evening at the ave maria. then we pursued our journey without stopping to spend the night anywhere, and we paused only as it was necessary for refreshing ourselves and changing horses, until we reached castelnuovo on tuesday evening, the last day of the said month of april. then because francesca said that she was suffering some pain, and that she did not have the fortitude to pursue the journey further without rest, she cast herself, still clothed, upon a bed in a chamber there, and i, likewise clothed, placed myself on another bed in the same chamber. i told the host to call us after three or four hours, for resuming our journey. but he did not call us, and the husband of the said francesca arrived in the meantime, and had both of us arrested by the authorities, and from there we were taken to rome. i have not spoken in arezzo to francesca at other times than those i have recounted above to yourselves. [sidenote: e. the lover is not related to count guido.] the husband of the said francesca is not related to me in any degree whatsoever. i have no profession at all, but am a canon of the pieve, of santa maria of arezzo, and am merely a subdeacon. when i was imprisoned at castelnuovo certain moneys, rings, and other matters were found, of which a memorandum was made by the authorities. i have never written any letter to the said francesca, except as stated by me above. the letters sent to me as above by the said francesca were burned by me in arezzo. although in the prison of castelnuovo, where i was placed, a diligent search was made by the authorities and also by the husband of the said francesca, nothing at all was found there. the said francesca when leaving arezzo carried with her a bundle of her own clothing and a box, in which she said there were some trinkets, but i did not see them. and she had it in a handkerchief with certain coins, which were then described at castelnuovo by the treasurer. i do not know precisely by whom the letters sent to me by the said francesca were written, but i suppose that they may have been written by her, but i do not know whether she knows how to write. in the chamber of the inn at castelnuovo where we stopped, as i said in my other examination, there were two beds. only one of these was provided with sheets by the servant of the tavern, that it might serve for signora francesca. i did not have sheets placed on the other, because i did not care to undress myself. nor did she undress herself, as i said in my other examination. if i should see one of the letters written by me to signora francesca, i would know it very well. i have seen and i do see very carefully these two letters which have been offered as evidence in this suit and have been shown to me by the order of your honour. one of them begins _adorata mia signora, vorrei sapere_, etc., and ends _mi ha detto il conti_. having well considered this letter, i declare that it was not written by me, though the handwriting of the same has some resemblance to my own. i have also seen the other letter, which begins _amatissima mia, signora, ricevo_, etc., and ends _questa mia_, and having well examined it i say that the same was not at all written by me, and is not in my handwriting. furthermore, it has not the slightest resemblance to my handwriting. i have never spoken in arezzo to signora francesca, except when i spoke to her at the window, as i said in my other examination. i have never received other letters from the said signora francesca concerning other matters than her flight to rome, as i have said in my other examinations. i marvel that the fisc pretends that, before the flight, several other love-letters had been sent to me by the said signora francesca; for she was a modest young woman and such actions would be out of keeping with her station and her birth. and therefore i declare that the abovesaid pretence is false and without foundation. i turn back to say to your honour that in the prison of castelnuovo there was not found by the authorities anything whatsoever. and if your honour tells me that certain love-letters were found, which the fisc pretends are those sent me by signora francesca, i say and respond that it is not at all true. no. .--_letter of the most reverend bishop of arezzo._ outside: to the most illustrious and most respected signor paolo franceschini, rome. and inside: my most illustrious and respected signor: i understand why you desire to tell me about the quarrels which have arisen between signor guido, your brother, and signor comparini. and i cannot but pity you for the trouble you have had in a case so rare, and indeed so unprecedented. the signora, your sister-in-law, had some recourse to me, but her great excitement, taken along with the excessive passion of her mother, revealed to me that the daughter had taken this step entirely by instigation. so i tried to make peace between them, thinking that when the instigations of the parents were removed she might be brought to right reason. i believed this the more readily, as she was of tender age. and the more she spoke, and the more she made outcry, that much the more had she been urged thereto by the instigation of her mother. and that she might not be excited even more, i had her taken home in my carriage twice. i have some knowledge of this because signor senator marzi-medici, who presides over the laic government of this town for our most serene grand duke, has told me all. and i need only add that i reaffirm what i have written with entire sincerity. wishing for new chances to serve you, i affirm myself to you, sir, your most obedient servant, the right reverend bishop of arezzo. arezzo, _september , _. no. .--_reciprocal love-letters._ my dear sir: i do not multiply my assertions for the purpose of proving my love to you, because my resolution and your desert is enough proof of it. my affection no longer has any rein, etc. may grace be to him who gives grace. my own signor: i tell you, do not be surprised if my mother was at the window, because she was looking at the one who was setting the sofa in order. and therefore you can pass here without fear. when more at my leisure, i will write you some fine matters, etc. when they tell me anything, i will advise you of it. my adored mirtillo, my own life: i pray you pardon me that i did not look at you yesterday when i was at the cappucchini, because i saw that the two were watching to see if i would look at you. therefore i suffered much pain in not being able to look at my sun. but i saw mine own with my heart, in which i have you engraved. i remain as i am and shall be your devoted servant and faithful sweetheart, amarillis. my well-beloved: i have received your letter, which has given me much pain, etc., that the jealous one might have seen the letters. and he did see them, but did not open them, because they were tied up together, and he supposed that they were other letters, and did not take them into his hand. this fellow is telling it because he would like you to get angry with me, etc. you ask me if i am of the same thought, and i tell you yes. if you have not changed, i am ready to do what i have told you, etc. then soon, if they continue to drink red wine, i will tell you so. whether you are of the same mind still, or have repented of it, i am content to do what you wish, etc. i remain as i have been your faithful sweetheart. most beloved signor: i do not know why you did not pass here yesterday evening; for i took my stand at the window and saw no one. i forsook the window because the canon, my brother, was there. i left there to go to the other windows lest he might see me, etc. but you turned toward the door of your sweetheart, because there is the one adored by you. conti has asked me for those octaves, which you gave me, etc. therefore tell me if i must give them to him or still keep the precious verses for myself. and i remain as i am and shall be your faithful, yes, your most faithful sweetheart, amarillis. i forgot to tell you that the signora my mother no longer has the fever, and is drinking wine, but by herself. her wine, however, is red like ours. therefore tell me what to do, that i may do it. i close with sending you a million kisses. but i know that in this way they are not so dear as a few would be if you would give them to me. but those of the signora are very dear to you, though i tell you that they are poisoned, etc. be the scrupulous one with others that you have been with me. for you have reason for this with others, but you have no occasion for it with me, etc. most cherished narcissus: this evening i received your letter, and it gives me great comfort to know that you are not angry, etc. i do not know when he will give it to me, but if he gives it to me i will give it to you. the jealous one is away, but i shall still be here, and all the rest; but because my mother has not found a servant, etc., they have said that they will stay here a while. therefore you will not pass [?] out of my mind because of my not seeing you for a while. but whoever loves from so good a heart as i do, will keep one in mind. i pray you pardon me if i make myself tedious by writing too often. acknowledging myself as i am, i remain your devoted servant and most faithful sweetheart. most beloved signor: if you could imagine with what haste i have written to you these two verses, etc. i met signor doctor, as usual. he asked me where i was going, and along the street, he asked me why i had written scornfully to him. i told him that he deserved even worse, because he had given evil deeds and good words; for he had said he was fond of me and that he wished him and the rest of them in sovara, etc. he replied it did not come from this one, but on account of another gentleman whom i used to like, who was more gallant than he. i answered him that if that one was not more gallant than himself, he was at least more faithful, etc. professing myself, as i have ever been faithful, etc. my adored and revered signor: i wish by this letter of mine to excuse myself from my error in sealing the letter which i sent to rome, etc. i tell you that they have not found any letter at all of mine, because i do not let them lie around the house, but give them to the flames. and while i keep them, i place them in my bosom. this is not an excuse, why you should surmise [it to be] one of my letters; for i tell you that i give it place in my bosom, etc. inasmuch as one of the family may be behind the curtain, as i believe, do not make any signal when you are under the windows. i shall be at the window this evening, or else at the blinds, and when i shall see you i will show myself at the window. but it is necessary to be prudent, that he may not see me. because he has told me that if he sees me he will wish to do such things as not even �neas, the trojan, did. to avoid arousing his suspicion i will not stay there. but i pledge myself your most devoted servant. my longed-for blessing: if your saying that i do not love you, because you do not know me, is not an error, it is at least displeasing to me. hear me, my dear: i am offended with you, because either you consider me blind or you do not consider me amiable. you cannot say of a truth that i do not love you, nor can you say truly that any one does love as much as i love you. look into my eyes, and you will be astonished; for when bright with my tears they will be faithful mirrors to reveal to you that your face is copied there (in which an outline of it is made in the sun), that your whiteness is snow in comparison with the milky way, that the graces have directed your movements by their own hand, that venus in fashioning you took the measure of your limbs with her own girdle. ah yes, i love you so much that in one respect i would wish alone to love you in the world, because it seems to me that i could love you all in central latium. i should like that all might love you, because you would see that all of them put together cannot love you as much as i alone do. my breast is envied by every other part of me, because it alone is able to love you. these are matters one cannot know by mere hearing; they are matters to render one excusable to any one else who does not believe it. but you are a cruel beauty; for if you see a face composed by the miracles of angels you should not consider it a lie if a heart is found fashioned by the miracles of love, etc. i leave you a thousand thousand kisses. my well-beloved: i pass by compliments, because i cannot match your very gallant verses, which are so far different from what i merit. you tell me that you wish to know what has happened in our house. i tell you that nothing has happened, so far as i can see, because none of them have said anything to me--none of them. but signor guido seems rather well disposed toward me than otherwise, and therefore i cannot find out whether they are angry with me. let my brother-in-law lock the door; he does it often, etc. if you do not wish to pass by here any more, i leave that to your own judgment, and i will suffer quietly the pains which are pleasing to you. therefore i tell you that you may do as you wish. for as gold is refined in the fire, so love is refined by suffering. i can well say that i shall suffer pain at not seeing you as i have been accustomed, etc. with a loving kiss, i remain as i have ever been, your most sincere sweetheart and your most faithful slave. i had quite forgotten to tell you that i stay in the same room as at first, and that thursday evening i went to bed at eight o'clock, and so you did not hear me enter the room. i told the servant that she should make the signals agreed upon, etc. signor guido returns saturday morning and you may pass this evening at ten o'clock or sooner, when you shall see the light in the room, etc. my well-beloved: i received your letter, which was most pleasing to me, as are all the rest you have sent me, etc. i see that you like the pastor fido. but i would wish you to imitate him, and i will imitate another vienna. i hear from her that you will want to come to see me at the villa, etc. if i could only bring it about, i would more willingly be your wife than your servant. you tell me that conti is unwilling to bring any more letters for you. but let me inform you that i am wheedling him, and i have the wits to bring it about that he will carry them to you; because i say two kind words to him and he is charmed and will do what i wish. you tell me that i shall let a cord down through the lattice, but you do not tell me what evening, etc. but i tell you that the jealous one had gone to sovara, if i might speak to you. but the confessor is utterly unwilling, and for that reason i do not have you come here, because now the street door is no longer opened, but you might be able to open the back door, etc. but that fate does not wish it, and you do not. i thank you for the kisses you send me, but if you yourself could give them to me, i would hold them dear. and i give you others in reply, as many millions as you have given to me. your most faithful sweetheart. i do not know what name to give myself, whether vienna, or amarillis, or dorinda, or lilla, but i wish to call myself ariadne, for i believe i have had to be such. i wish to call myself such, only so you are not a theseus, but a chaste joseph, or a dear narcissus, or an ilago, or a fedone. adonis indeed took pity on venus, but i am none such, but even a medusa. therefore i deserve, etc. if you have read tasso, you will know who this was, etc. my beloved idol: i know of the affairs which have happened to you. i do not take it in bad part when you tell me that it is not possible to make my mother sleep, while she is ill and drinks no wine, and therefore cannot sleep. it may be in the next few days that she will get well. then i will inform you of it, etc. your faithful sweetheart, amarillis. my adored, beloved, and revered heart: i am confused at such praise, etc. you write to me oftener than you might about the doctor. you offend me by saying that i will love him again. i tell you as sure as the sun shall rise upon this world, i have not the heart for another such blow. but he who does ill, thinks ill, etc. as to what you wish to know about the wine, i tell you that it is red now, but i do not know how much longer it will be so, but i will let you know about it. sending you a thousand and a thousand, and a million of kisses, i remain, etc. come this evening at seven o'clock, because i wish to speak to you, and cough when you are under the window. amarillis. she is bursting because she cannot say, as you tell me here, that she is white as milk, and that you are darker than i. if i had been you, i might have called you ivory, as i do call you. watch this evening lest it be the jealous one, and not myself. therefore i will cough, and if you do not hear me cough, do not move. i let you know that signor guido is going out of the city, and will be gone several days. therefore i pray you come this evening about seven o'clock. and when you are under the window cough and wait a little while, that i may not make a mistake. he goes away monday morning, etc. my dearest and most deserving well-beloved: i give the infinite thanks of rosalinda, etc. i wish you to know that he makes me signals along the via del poggio, etc., and not because i wish to make proof of your love, which i know very well. you are as constant as myself, and therefore i do not wish to make these proofs, etc. so that you cannot say that i no longer love you, because all my good wishes for signor guido are turned to you, who deserve it. amarillis. _letter of the lover._ my adored signora: i wish to know whether you can leave sunday evening, that is, to-morrow evening, for if you do not go away to-morrow evening, god knows when you shall be able to do so, because of the scarcity of carriages, owing to the fact that on wednesday the bishop departs with three carriages. therefore, if you can go, as soon as you have read this letter of mine, return to the window and throw it to me as a sign that i may reserve a carriage beforehand, which may be secured from some one or other. if i secure the carriage to-morrow, in passing along there i will let fall my handkerchief one time only. then for the rest, to-morrow evening i will wait from eight o'clock in the evening on as long as necessary. and as soon as you see that they are sound asleep, open the door for me, that i may help you make up your bundles and collect the money. above all, try to put some into all their cups, and do not yourself drink it. and if by ill luck they shall find it out, and shall threaten you with death, open indeed the door, that i may die with you or free you from their hands. and praying god that he will make this design of ours turn out well, i declare myself as ever. your most faithful servant and lover, mirtillo. it is a very bad sign that the jealous one seems pacified, and that he has said you were at the window. because he will wish to find out in that way what you are doing at the window, and for what purpose you are there. for conti has told me that now he is more jealous than at first, and that if he find out about anything, he will wish to avenge himself by putting us to death. he wishes to do the same to me, and that is what will happen. here then has come at last the breaking of the chord. most beloved signora: i have received your note full of those expressions (and then loving words follow). be pleased to receive me into your bosom, in which i rest all my affections, etc. consign to the ashes this note of mine. _another letter of francesca._ my revered signor: driven by the affection which i feel for you, i am forced to contradict what i sent you yesterday evening in that letter when i said i did not wish to tell you to come here. if you did not tell me then, i tell you now that i would wish you to come here this evening at the same hour as day before yesterday evening. i have indeed thought that towers are not moved by such light blows. but if you do [not?] wish to come here (that there may be no occasion for you to break your promise to some beloved lady or even though it may not be convenient), i do not wish to be the cause. therefore if you wish to come here, pass along as soon as you have read this, etc. no. .--_decree of banishment of the lover._ _tuesday, september , ._ joseph maria caponsacchi, of arezzo, for complicity in flight and running away of francesca comparini, and for carnal knowledge of the same, has been banished for three years to civita vecchia. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases:_ _roman murder-case._ _for count guido franceschini and his associates, prisoners, against the fisc._ _new memorial of the fact and law, together with a summary, by the honourable procurator of the poor._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord governor: the confession of count guido and his fellows as to the murder of francesca, his wife, and of pietro and violante comparini, his father-in-law and mother-in-law, falls far short of supporting the fisc in demanding the ordinary death penalty. but, rather, it is remarkably in our favour in excluding that penalty. for there is no longer any doubt as to the cause of the murders, namely _causa honoris_. this at first was denied by the fisc because of the presence of other causes, though these either were insufficient or were indirectly hurtful to the sense of honour. we will go over them hereafter, not "with unwashed hands." for a confession indeed should be received along with all its details, and is not to be divided according to a preconceived purpose. [citations.] this cause alone would be ground enough for demanding that he and his fellows be dealt with more mildly, if we bear in mind that _causa honoris_ is quite sufficient for the moderating of this penalty. for we have proved in our other argument that a husband may kill his adulterous wife, even after an interval, without incurring the death penalty, wherever the adultery is really proved, as the advocate of the fisc concedes in his response. § _solamque suspicionem_. and in very truth, we have in our other plea adduced a great many decisions of the highest courts, wherefrom it is evident that the penalty has been diminished for husbands who have had their wives killed even by means of an assassin; and, on the contrary, no decision favourable to the fisc is cited. such an opinion is therefore to be accepted more readily, inasmuch as it is sanctioned by the greater number of authorities. and even although farinacci and rainaldi seem to take the other side, yet farinacci, in his _questions_, shows himself very much in doubt, as i have shown in my other plea; and in _cons. _, he shows that he is very changeable, since in _cons. , no. _, he has proved the contrary. therefore, when his attention was called to this changeableness, in excusing himself, he asserted, in the said _cons. _, under _no. _, that beatrice, in behalf of whom he had written in _cons. _, had been beheaded; as if this kind of rigorous sentence should be followed in practice. and may this distinguished authority pardon me, but he responds inconsistently, having forgotten what he had written in the end of _cons. _: that is, that beatrice was put to death not because she, after an interval, had commanded that one be put to death who was plotting against her honour, but because she did not prove her right to this latter exception, where he says: "so also there was strong hope for the sister beatrice, if she had proved the excuse she offered, as she did not prove it." but the honourable rainaldi, whose words and writings i venerate, in his _observationes criminales_ (_cap. _, § , _no. _), after he asserts that some remission from the ordinary penalty may be hoped through the benignity of the prince, does not decide the point by citing gizzarellus and giurba, who affirm that in justice the penalty should be decreased. but he goes back to what he had written (_cap. in rubrica sub no. _), where, however, he does not openly examine the point as to murder permitted for honour's sake. otherwise he would go contrary to the general opinion of authorities, and to many decisions of the highest magistrates, that is to the common practice of the courts. [citation.] "and this opinion is followed in practice, as i find in the event of such a fact the neapolitan court has so decided." and concerning this same practice, matthæus likewise bears witness. [citation.] yet, as i have said, it would be enough to clear guido of conviction if only his confession be taken in its entirety without subdivision. for greater completeness, however, we offer full proofs of the adultery, as brought out in the prosecution for the flight from home. the fisc has attempted to attack these proofs lest he might have to lay down his arms; and the achilles of his pretence is solely a preposterous cross-examination, which was not admitted into the suit for permanent record. it gives the word of a certain baseborn woman, formerly a servant in the home of the accused, who was severely maltreated by guido, by the canon his brother, and by their mother. all too eagerly she narrates the ill-treatment suffered by pietro and violante, and by francesca their daughter, and his wife, respectively, especially in the matter of their food, on account of which pietro and violante preferred to return to rome. yet guido by a written agreement had bound himself to furnish food to the abovesaid couple. and furthermore it is claimed that the flight of pompilia also was necessary, because she was being threatened with death; in order that her own base desire of violating her matrimonial fidelity may not be deduced therefrom. if, however, we have any regard for the truth, the domestic affairs of the accused were not so pinched, because they were more than enough, not merely for frugal, but even for lavish living. the theft of the moneys committed by francesca in the act of flight demonstrates this. (see the prosecution for flight, pages , , and .) the real and true cause which moved pietro and his wife to go back to rome was undoubtedly that the mother of count guido could not bear that the aforesaid comparini should regulate family matters and should at their own pleasure dispose of everything looking toward the government of the home; this with greatest flagrancy and with none the less boldness they desired to do. furthermore, pietro took it ill that he was rebuked for leaving the company of the noble class and associating in taverns with the commonest persons in town, to the scandal of well-born men. and still more because he was compelled by the governor of the city, under fear of imprisonment, to restore certain trinkets and gems of his daughter, which he had taken away, as count guido testified in his examination (pp. and ). and this is admirably proved by a letter of the same governor recently presented by ourselves, which we give in summary, no. . with these statements the cross-examination of the same francesca, when arrested in her flight, agrees; in it we nowhere read that she was maltreated, nor that she ever complained of that home of decent poverty. and yet it is very probable that, to put a good face upon her flight, she would have alleged the domestic want and home miseries, if she had ever suffered them. we do not deny that disputes immediately arose between francesca and her husband, and possibly he threatened her with death. but this was for another reason, namely that she should quit the illicit amours she had begun at the suggestion of her parents, and that she should live with evident chastity as is to be read expressly in her deposition (our summary, no. , letter a). it is verified from the fact that francesca herself, in a letter written to abate franceschini, ingenuously confesses (summary of the fisc, no. , and our summary, no. ) that her parents indeed were sowing strife between the couple, and were urging her to have recourse to the bishop under the false pretence of ill-treatment; and day and night they kept instigating her to poison her husband, her brother, and mother-in-law, to burn the house, and what is still more awful, to win a lover and return to rome in his company. nor did she fail to obey them in several of these matters. and in another letter written to the same abate, and shown by us, and given in our summary, no. , we read: "not now having those here who urge me to evil." of no counter-effect is the response that the single characters of the said first letter had been previously marked out by guido, and were afterward traced with a pen by herself, as she asserts in our summary, no. , letter k. for proof of this statement she can bring no other evidence than that she does not know how to write. summary, no. , letters b, h, and k. in this, furthermore, she stands most clearly convicted of falsehood by her signature, which was recognised by herself at the command of the court while she was in prison, as we find in the prosecution for flight (p. ). she also stands convicted of falsehood by the signature of her marriage agreement, concerning the truth of which it would be ill to doubt, both because there is along with it the signature of one of the lord cardinals, and because her handwriting was recognised by herself who had written it, at the demand of the notary, as is to be seen in the copy filed in the prosecution for flight, p. . and, furthermore, she is convicted by the priest with whom she fled, who asserts that more than once at night he has received letters which were either thrown out of the window by her or were sent by a servant; we give his deposition in our summary, no. , letters a, b, c, and d. this is verified by the fiscal witness (p. ), where we read: "and she threw down a note, as i saw very clearly, and the canon picked it up, and went away." there are, besides, the letters and sheets of paper filled with mutual love, found in the prison at castelnuovo, where they themselves were overtaken. but it is utterly impossible that the characters of these were also marked by her husband, nor is it told by whom they were written; accordingly it is to be presumed that they were devised by herself, lest she might betray their forbidden love-intrigues, which they would have to hide with the greatest care. and i pray that the abovesaid letter be submitted to our eyes, and it will be clearly seen whether the characters were formed by one not knowing how to write, but forming them in ink in imitation of certain signs, or rather by the expert hand of the woman herself. in the first place, the truth of the said letter of which we are speaking, we may gather from the letter of the governor of arezzo, in our summary, no. , where we find: "of much greater scandal were the flights and petitions made by the said wife, their daughter, to monsignor the bishop. these were made for no other reason than that neither she nor her parents wished to stay any longer in arezzo, but desired to return to rome. when she had been rebuked by that most prudent prelate, he always sent her home in his carriage." and this is likewise expressly deducible from another letter of the most reverend bishop, which is given in the summary, no. , where we read: "the more she made outcry, that much the more she had been urged thereto by the instigation of her mother." and after a few words: "i have some knowledge of this, because senator marzi-medici, who presides over the secular government of this city for our most serene grand duke, has told me all." it is verified still further by another letter of signor bartolommeo albergotti, produced by the other side, which is given in the summary of that side, no. , at the end. but the letter is not given in its entirety, for, where it speaks of the secretary of the bishop urging count guido and his mother, we should read there: "not to maltreat the signora for the affront offered him. after disputes enough of this kind, he took the signora back home. and she declared that she was absolutely unwilling to live with signora beatrice and with the canon girolamo, her brother-in-law." and after a few other matters: "i pray yourself and signora violante to be willing to offer a remedy by instilling the wife with a tranquil peace, which will be for the quiet of all" (as we read in page ). this is also proved by the letter of the abate produced on the other side (p. ), where we read: "by signor guido, my brother, several offers have been made to him, but have not been accepted; and they insist that we force our mother and the signor canon to leave the house. but this shall never be, even if there do not follow both love and concord. i will never advise that." and from the letter of signor romano, , later, where we read (cf. p. liv.): "i have known why she fled to monsignor, and it was because she did not wish to live with the canon and beatrice," etc. (which words are not noted in the summary of the fisc, no. ). see for yourselves, therefore, that francesca was not maltreated, although she so deserved because of her eager and indecent recourse without cause to the most reverend bishop. hence it is evident whether the comparini left arezzo and francesca fled from home because of ill-treatment. it remains now that we see--even granting this ill-treatment--what cause of fleeing from the home of her husband francesca might have, or rather if her flight were not scandalous. this will not be difficult to make clear, if we will dwell for a little while upon the deposition of the same francesca and upon the letters found in the said prison of castelnuovo. these latter were produced by the fisc in the prosecution for flight, though they were not given recognition. the lack of this acceptance cannot stand in our way, nor do i think it can be denied that they are of the same handwriting, if they are compared with the assured writing of the command of the court. furthermore, as they contain love affairs, and the name of guido himself, no sensible person will think that they were not written by them. from her own deposition, it is evident that she was often abused for her sterility, and was terrified by threats of death on account of her love affairs with the said priest (as we see in the said summary, no. , letter a). nor was the cautious husband deceived, since her love increased day by day, while her conjugal affection indeed decreased just as her feeling for her lover increased. in the said letters (which are given in summary, no. ), that priest is called: beloved, adored, mirtillus, my soul, most dearly beloved, narcissus, my eagerly craved blessing, dearest idol; and she signs herself "thy faithful sweetheart," and "amarillis." and conversely, she is called by her lover "my adored signora." and in the details of those letters is expressed her intense love and the ardour with which that unfortunate one was burning for her lover, as is evident. nor may i without shame refer to the very tender expressions of her love. but one of them, and possibly a second, i may not omit, that "from the claw, you may recognise the lion." thus in letter , we read: "so that you cannot say that i no longer love you; because all my good wishes for signor guido are turning toward you, who deserve it." and this possibly is the reason why she refused to lie with her husband, as the said letter of signor albergotti points out, where he says: "the signora has been melancholy, and two evenings after your departure she made a big disturbance, because she did not wish to go and sleep with signor guido, her husband, which displeases me very much." in the first letter [we read]: "my affection no longer has any rein"; in the fourth: "i am ready to do what i have told you"; in the tenth: "i will suffer quietly the pains which are pleasing to you." and it would be a long task and a disgusting one, to tell them over singly. for she was unwilling to conform herself to the chaste manners of arezzo, accustomed as she was to living a freer life. this may be read in the letter of abate franceschini produced by the other side (page ), and following, where we read: "these occasions for bitterness, which have arisen between yourselves and signor guido, i do not wish to examine. i know enough to say that this has arisen from your wishing to turn the wife from what, according to the custom of the country, her husband both may and ought to do. because over the wife god has given him authority, and likewise it is the general usage and the custom of the country. if yourself and signor pietro should stand in the way of this, you would do wrong, and it would be the duty of the husband to admonish his wife." and in another letter, p. , we read: "i cannot persuade myself that my mother and brothers would conduct themselves in such a way as to force her to have such recourse." and after a few words we read: "and know well that what i have endeavoured by my words to urge upon signora francesca, signor pietro, and yourself is only out of pure zeal for the honour of your house and of yourselves." on the other hand, the same thing is to be drawn from the letter of the said priest (as we read in letter ): "i have received your notes, full of those expressions [of love], etc. be pleased to receive me into your bosom, in which i rest all my affections." and the letters which have reference to the flight give clear proof of the mutual exchange of affection, as is well proved by the effect that followed. thus, in letter , we read: "i wish to know whether you can leave sunday evening, that is to-morrow evening; for if you do not go away to-morrow evening, god knows when you will go, because of the scarcity of carriages." and after a few intervening words: "as soon as you see that they are sound asleep, open the door for me, so that i may help you make up your bundles and collect the money." and after a few more words: "praying god that he will make this design of ours turn out well." and letter of the same lover, in which proofs of love are given by no means obscurely, also shows us of what quality those loves were, where we read: "that the jealous one seems pacified, and that he has said you were at the window, is a very bad sign; because he will wish to find out in that way what you do at the window, and for what purpose you are there. for [conti] has told me that now he is more jealous than at first, and that if he find out anything he will wish to avenge himself by putting you to death and will wish to find means to do the same to me." it is proved still further that the wretched accused complained bitterly that she was not content merely with a single lover at arezzo, but that she has been defiled by many suitors, so that she multiplied the disgraces to his house (page ), and following. we also read clearly in the seventh letter: "i met signor doctor, as usual. he asked me where i was going, and along the street he asked me why i had written scornfully to him. i told him that he deserved even worse, because he had given evil deeds and good words; for he had said he was fond of me, that he wished him and the rest of them 'in sovara.'" and in the thirteenth: "as to the doctor, you offend me by saying that i will love him again. i tell you, as sure as the sun shall rise, i have not the heart for another such blow." it is therefore quite evident whether francesca had an honest cause for leaving the home of her husband, or whether she was not rather impelled by the more urgent spurs of love. it may be said now that these letters were sent for a good purpose, that the priest might be induced to accompany her so that she might shun the danger of death, since she found herself therein without any just cause. and it may be said that she could have kept her modesty uninjured in the company of her lover. but since without doubt the amorous expressions used in the letters do not show chastity of mind and a modest disposition, and as just cause for flight is lacking, the veil wherewith her viciousness tried to hide itself is destroyed. i acknowledge that judith, who was an entirely chaste widow, of decorous appearance and fine looking in many ways, made advances toward a very licentious enemy; but this was for the purpose of accomplishing a pious work, namely, to liberate her own native land. she was provided not with lascivious letters, but with earnest words, the unimpaired modesty of which it were evil to doubt, since she was moved by the breath of the holy spirit. but to-day, how very few judiths are found; yet the daughters of lot are multiplied, who when they could not preserve their sense of shame even in their father's company made him drunken with wine, lest he, when sober, would deny them because they were sinning weakly, so that, when out of his own mind, he was involuntarily polluted with nefarious incest. (genesis, chapter .) do we believe that a girl who was dying for love, and who burned most ardently for the company of the loving cupid and her lover, would keep safe her modesty during a long journey? which modesty i only wish she had preserved in the home of her husband! and even if guido had imposed upon her, without due reason, a just fear of death, she should not therefore have increased his suspicion of base and lustful acquaintanceship by choosing as her companion in flight that priest whom her husband had suspected; for caponsacchi was not at all related to herself or her husband, as each of them confesses in our summary, no. , letter g, and no. , letter e. thus she would prove her dishonour. but while still guarding carefully her matronly shame, she might either have entered some monastery with the help of some church official, if she had used truth and not falsehoods; or she might have had recourse to the civil governor, who, after examining all things, would have afforded her a safe return to the city in company with honest men and women; or he might have placed her in the home of some honest matron, with due safeguards. but even if she had no faith in either of these, and was determined to go back to rome, she might at least have entered upon the journey with one of the servants. likewise, the other excuse for putting an honest face on the illicit amour falls to the ground--namely, that concerning the aforesaid flight another priest, the brother-in-law of the sister-in-law of the said francesca, was informed. for if the abovesaid letters are read through carefully, the suspicion of illicit correspondence with his connivance is very greatly increased. we read in letter : "you tell me that [conti] is unwilling to bring letters for you. but let me inform you that i am wheedling him; and i have the wits to bring it about that he will carry them for you. because i say two kind words to him, and he is charmed and will do what i wish." and in letter of the lover: "for he has told me that now he is more jealous than at first, and that if he finds out about anything, he will wish to avenge himself." but who would judge that we can deduce from the said words that their mutual love was chaste, because another priest was aware of it. i know that for francesca to show herself at the window at the hiss of her lover in company with the other priest does not savour well. of this a witness for the fisc, in the prosecution for flight, gives oath (pp. - ). therefore, not without cause did count guido have suspicion also of the other priest, as francesca herself asserted in her deposition in our summary, no. , before letter a. these [two] things are taken as proved therefore: [first] that it is not established that francesca was threatened with death without just and legitimate cause, and [second] that a most suspicious correspondence with her lover is established. it will follow that the threats were offered by her husband to preserve his honour, and so it was in the power of francesca to free herself from these threats without scandal, without flight, and without shame, by living chastely. she, however, was too prone to the tickling of the flesh, and had deferred all things to the fulfilling of her vicious desire, without respect to her violation of conjugal faith. it is all too foolish to doubt her utter recklessness, since it is manifestly evident from matters brought forward in the prosecution for flight, and especially from the reciprocal love between the lovers, etc. it is also clear from the letters containing such very tender expressions. [citations.] as to the entry and egress of the said priest from the home of francesca at a suspicious time, a witness for the prosecution testifies (p. ): "at the sound of the ave maria, while i was at the same window, i saw the door of the said signori franceschini open very softly, and from it passed the said signor, etc. he pulled the door to as he went out, but did not in fact close it, and therefrom, after a little while, i saw the said signora francesca pompilia, with a light in her hand, who closed the said door." it is also proved from letter , where we read: "for that reason, i do not have you come here because now the street-door is no longer opened, but you might be able to open the back-door," etc. this of itself is enough to prove adultery, even when trial is being made to demand punishment therefore. [citations.] her leaning from the window at a hiss, day and night, and their mutual nods, concerning which a witness testifies, p. , are quite enough to prove carnal communication. [citations.] then there is the manner in which they prepared for the flight, which includes, as i may say, a show of treachery, as is to be understood from the letter of the priest, no. , where [we read]: "above all, try to put some into all their cups, but do not yourself drink it." for in seeking an opportunity to mingle an opiate for them, he was inquiring what coloured wine they were drinking in the home, lest, as i suppose, the colour of it when altered by the drug mixed therewith might betray their plots. so in letter , where we read: "then, further, if they continue to drink the red wine i will tell you so." in no. : "when you tell me that it is not possible to make my mother sleep, while she is ill, and drinks no wine." and in letter : "as to what you wish to know about the wine, i tell you that it is red now, but i do not know how much longer it will be so; but i will let you know about it." still further this most wretched wife was moved with a burning ardour for the said priest, as is noted in letters and ; this is usually conceived by lovers only. therefore, since it is undeniable that the carnal love was reciprocal between them, i think it can not be doubted that her departure from the home of her husband and their association through a long journey, prove their adultery. [citations.] in the progress of the journey kisses were given on both sides; of this the witness for the prosecution testifies; but i do not find in the evidence that he saw these at night, as is supposed by the other side; for page asserts "i only saw that at times they kissed each other." and these kisses francesca so strongly desired to give and to receive likewise, that in letter [we read]: "i thank you for the kisses you send me; but if yourself could give them to me, i would hold them dear. i give you as many million more." and in letter : "and giving you an amorous kiss." and in : "i say good-bye with a million kisses." and here and there in the other letters. these render the adultery not at all doubtful, so much so that there are not wanting authorities who assert that when the kiss is proved the adultery may be said to be proved. [citations.] therefore, unless i am very much mistaken, no one who knew what we have recounted could be found so senseless and so weak-minded as not to believe strongly that when they were found in the inn her matronly shame had been tampered with, either during the journey or at night while they were taking their rest, or more probably in the morning while they were enjoying each other's society. but passing over the fact that the priest was clothed in laic garb (pp. and ), which affords no small weight for the proof of the adultery, all further doubts are removed, since they arrived together at the tavern of castelnuovo at half-past seven at night, as three witnesses for the prosecution agree in swearing (pp. , , ). and although two beds were in the chamber, only one indeed did the said priest wish to have made ready, and all night long, behind closed doors, he rested alone with her (if lovers can rest); from this the adultery is proved without doubt. [citations.] this proof indeed becomes all the stronger from the lie of francesca, who asserts that they arrived at the said tavern at dawn (summary, no. , letters f and l). for if no evil had been done she would not have attempted to hide the truth. [citation.] finally, the sentence or decree of this tribunal, which is given in summary, no. , where the said priest is condemned for carnal knowledge of francesca, removes all doubt; because the adultery is thereby rendered infamous, as was proved in our other argument. and though it is asserted that it was in the minds of the lords judges to modify this sentence and to add "for pretended carnal knowledge," yet it never was thus modified. and yet such modification would not have stood in the way after it had reached the ears of the luckless husband that the adultery of his wife had been made manifest and notorious and had been confirmed by the judges' decree. but certainly, even if we are cut off from this proof, their carnal communication remains more than sufficiently proved for our purpose; for we are arguing not for the infliction of the penalty of adultery, but we have deduced the adultery for exclusion of a penalty. [citations.] for it is quite customary that, for a civil purpose, such as divorce or loss of dowry, adultery is abundantly proved by circumstantial evidence. [citations]. nor is it of consequence that some of the stronger proofs are proved by single witnesses; for we are arguing to establish dishonesty and adultery in kind; not for the purpose of condemning the adulteress, but for the defence of the accused. and the reason is very evident, because to excuse a husband from the murder of his adulterous wife after an interval, an exact proof of the adultery is not required, but strong suspicion of adultery is quite abundant, as sanfelicius testifies it was decided (_dec. , num. _). but we are upon firmer grounds, because we not only have strong suspicions drawn from single witnesses, but other finely proved grounds, yes, the clearest of proofs, deduced by the prosecution. very little does it stand in the way of this proof of her guilt that francesca, when near to death, tried to exculpate herself and her lover by asserting that there had been no sin between them; for this kind of exculpation, which is all too much a matter of pretence, might help her companion just as theretofore she had brought blame upon him; and by no other proof might his inculpation have been removed. this would indeed aid her fellow, but not herself. but since she stands convicted by the abovesaid proofs of having broken her matrimonial faith, it would be absurd that an exculpation made that she might seem to die an honest woman, should be of such efficiency as to destroy the proofs of her baseness. [citations.] and what is more horrible, that from the said exculpation, her murderer might be the more severely punished. i have faith, and this helps me to hope, that her soul rests in eternal safety, by divine aid, since she had time to hate her previous life. but no man of sense could praise her testamentary disposition, in which she appointed as her sole heir her son, who, as i hear, was but just born and hence innocent, and who had been hidden away from his father, and which appointed as residuary legatee a stranger joined by no bond of relationship. from these considerations, therefore, it is plain that the adultery of francesca is fully proved. hence according to the opinion of the fisc, her murder, even if committed after an interval, is not to be expiated by the death penalty; not only because of the justly conceived grievance, but because the injury to the honour always keeps its strength, according to the sentiment of virgil in the _�neid_, book i: "keeping an eternal wound within the breast." it is of no force in response to this that he did not kill his wife and the adulterer, whom he had overtaken at the inn of castelnuovo, but that he merely saw to their imprisonment; as if that, after his recourse to the judge, he could not with his own hand avenge his honour. for we deny in the face of all heaven that he could have killed either of them, because he was worn out by the rapid journey, and was so perturbed by the agitation of his mind, that he was seized by a fever. and furthermore he had heard that the said priest was armed with firearms, as he asserted in the prosecution for flight, at a time when his word cannot be suspected, because the murders had not yet been committed (pp. and ). it is also true that the priest was a terrible fellow, according to the witness for the prosecution (p. ), and as francesca herself confesses. elsewhere, the accused speaks of the taking away of an arquebus pointed at the officers, as he himself asserts (p. ). and, furthermore, caponsacchi was all too prompt and too much disposed to resisting, as we read in letter . there, in speaking of the opiate to be given to the domestics, he adds: "if by ill luck they shall find it out and shall threaten you with death, open the door, that i may die with you, or free you from their hands." and the wife, indeed, was unterrified, full of threatening, angered, and even furious, as the outcome proved; since when captured by the posse of the ecclesiastical court, she dared in the very presence of the officers and other witnesses to rush upon her husband with drawn sword. and she would easily have killed him, if she had not been hindered (p. ). he, indeed, weak, as he is, and of insufficient strength, could not have taken vengeance by killing both, or either of them, provided as he was with only a traveller's sword. hence, as he was not able to kill them, he saw to their imprisonment in the confusion of his mind, in order that he might prevent the continuation of his disgrace, and thus might hinder their future adultery. but, indeed, even if he could have killed them, and did not do so, he would be praiseworthy; for up to that time the adultery had not been made notorious by the sentence of the judge, and only strong suspicions of it were urging him on. but as for the recourse to the judge, whereby it can be claimed that he renounced the right to kill his adulterous wife, which we deny, i pray you note that the tribunal acted prudently in placing francesca in the monastery, that she might be kept more decently than in a prison. then when it received the attestation of the physician as to her condition, lest she might be kept there destitute of necessary aids, and so might undergo punishment in the very course of events (which is everywhere avoided), after obtaining the consent of abate franceschini, brother of the accused, the court permitted her to be placed in the home of her parents with the warning to keep that home as a prison. but i cannot commend any one, whoever he may be, who tried to get francesca from the monastery under the false pretence of ill health, since he could legitimately and with more decency have succeeded in his intent by laying bare the truth, namely her pregnancy. but this was done for no other reasons than these: either that the son might be hidden away from count guido, since the law presumes that he was born of his legitimate father, although his wife had shown herself incontinent; or else francesca, believing that the child was conceived of some one else, possibly was trying to hide from her husband the fact of her pregnancy. and now in the meantime, let it please my most illustrious lord to turn his eyes toward arezzo and for a little while to think of count guido stained with infamy, when the decree of condemnation for adultery reached his ears. the adulteress was still unpunished, and he was ignorant of the fact that she could not be punished, owing to her supposed ill health, and that during her pregnancy, which she had so carefully hidden from him, she was unsuited to the vengeance of the sword. furthermore, when he saw that francesca had gone back to that very suspicious home of pietro and violante, who had instilled francesca with dishonesty, had repudiated her, and had professed that she was the daughter of a harlot, he lost all patience, as is evident from the deposition of blasio (p. ), where we read: "but still further, she had been received back into the home, after she ran away from guido, although the latter had put her in a monastery." this change drove to desperation her luckless husband, who was at least an honourable man. therefore his recourse to the judge ought not to increase the penalty for him. we do not deny that abate franceschini had given consent to the removal of francesca to the home of pietro and violante (in order that we may yield to our respect for my lord advocate of the fisc), but only on verbal representation, for i have not been able to see it in writing. but, for our proposition, this does not affect count guido, since it is not made clear that he was informed of such consent, and thus far the fisc merely presumes that he had been informed by abate franceschini, his brother, of this consent. [citation.] we are compelled to affirm that this knowledge is not to be presumed as is shown below, or at the very worst there is present only presumptive knowledge. and i do not think that on this kind of merely presumptive knowledge the death penalty can be demanded, nor can count guido be condemned, since he has neither confessed nor been convicted of such knowledge: chapter _nos in quemquam_, where we read: "we cannot inflict sentence upon any one unless he is either convicted or has confessed of his own accord." indeed, what if count guido had acknowledged that he had written the consent furnished by the abate, his brother, since it had no special authorisation for that particular matter; nor a general authorisation to conduct litigation, but only to receive moneys taken from himself by francesca, as is to be seen (p. ). by exceeding the limit of his power, abate paolo would have exasperated the mind of guido; for the luckless man was already burning so with rage at the temerity of francesca, pietro, and violante, that he was almost driven, i might say, to taking vengeance. he had put this off as long as he had any hope that he might have the marriage annulled because of mistake concerning the person married. for he was ignorant of the point of canon law that error as to the nature of the person contracted does not render a marriage null, but only an error as to the individual. [citation.] nor does it amount to anything that francesca, at the time she was killed, was under surety to keep the home as a prison, as if she were resting in the custody of the prince. for, however that may be, even if the accused had killed francesca to the offence of the prince, yet since he wished to recover his honour and to remove with her blood the unjust stains upon his reputation, for this particular reason the aforesaid custody is not to be given attention, nor does it increase the crime; as in the more extreme case of one injuring a person having safe-conduct from the prince, farinacci affirms in making a distinction [citation] where knowledge thereof is not to be presumed. furthermore, when we speak of custody we should understand it to apply to public custody and not to a private home as was proved in our other argument. nor is the response enough that this would hold good in the one under custody, but not concerning the custodian, violante; for i do not know any probable distinction between the two, since both cases may suffice for escaping the penalty; nor is any stronger reason to be found for the one than for the other. and indeed a third case would be more worthy of excuse, of one who broke this kind of custody, when knowledge thereof was not proved. because such an offence might arise under such custody, just as one who had killed a person under bann, but ignorant of that bann, excused himself. [citations.] if therefore count guido is not to be punished for murder of his wife, for the same reason he cannot be punished for the murder of pietro and violante, because these murders were committed for the same cause, _causa honoris_. for at their instigation, francesca found her lover, and still more, in order that they might disgrace guido, they did not blush to declare that francesca had been conceived illegitimately, and had been born of a harlot. this greatly blackens the honour of an entire house, as gratian observes [citation]; for the daughters of such are usually like their mothers. then also, as i have said above, the accused burned with anger when he had notice of the return of francesca to their home (p. ), and the following. and alexander proves this in his confession where he says (p. ): "so that he had to kill his wife, his mother-in-law, and his father-in-law: because the said mother-in-law and father-in-law had a hand in making their daughter do evil, and had acted as ruffians to him." this following fact makes it all the clearer, because on the fatal evening when they were slain, at the knock on the door, and as soon as violante heard the much beloved name of the lover, straightway she opened it. and thus she showed, unless i am mistaken, what removes all doubt that pietro and violante were not at all offended with the love affairs of their daughter and her lover. it is all one, because we are compelled to acknowledge either [first] that the comparini had done new injury to his honour by receiving her into their home after they had declared that she was not their daughter, and after her adultery was clearly manifest, and hence there should be departure from the ordinary penalty. [citation.] for just indignation, when once conceived, always oppresses the heart and urges one to take vengeance. [citation.] or else [secondly] we must acknowledge a cause of just anger continued, and indeed was increased, which is quite enough foundation for asserting that the murders were committed incontinently. [citations.] since, then, from the confession of count guido as well as from that of his associates, and since from so very many proofs brought forward in the trial, it is evident that guido was moved to kill them by his sense of injured honour, in vain does the fisc pretend that for some other remote reason he committed the crimes. for, to tell the truth, i find no other cause which does not touch and wound the honour, if we only bear in mind what guido has said in the trial (pp. and ): namely, that the comparini had arranged the flight of francesca and had plotted against his life. this alone would be enough to free him from the ordinary penalty. bertazzolus and grammaticus [citation], testify that a man was punished more mildly who had had one who threatened him killed, though the threats were not clearly proved. [citations.] "and the death which he had threatened fell upon himself, and what he planned he incurred," and also: "there is no doubt that one who had gone with the intention of inflicting death seems to have been slain justly." another cause of the murder alleged by the fisc is the lawsuit brought to annul the promise of dowry. upon this point a complete and a very skilful examination was made by the other side, and because of this it was pretended that he had incurred the penalties of the alexandrian constitution and of the banns. but this pretence in fact soon vanishes. for if we look into it well we shall find, without difficulty, that a cause of this kind is no less offensive to the sense of honour. for the ground on which pietro had attempted to free himself from the obligation to furnish the promised dowry was this solely: that francesca was not his own daughter, but the child of an unknown father and of a harlot. every man, however, well knows whether this kind of a declaration would wound the reputation of a nobleman. whether or not a pretence of this kind could have found a place for itself before we had the confessions of count guido and his companions, as i have said above (for then the fisc might have been in doubt how guido could be moved to kill her), yet thereafter it was clear from the confessions of them all that the sense of injured honour had given him the impulse, and had even compelled him to the killing, as count guido asserts (p. ) where we read: "to inflict wounds upon them, inasmuch as they had injured my honour, which is the chief thing." vain is it to inquire whether he had killed them for some other reason, because, as it was clearly for honour's sake, the fisc never could prove that they were killed on account of the lawsuit, and not on account of honour, as is required for the incurring of the penalty of the aforesaid bull. [citation.] these statements are apt also as regards the murder of francesca, who had sought a divorce. for if she had made pretence of being separated from him for any other reason, and if her dishonour were not perfectly clear, then indeed there might be room for the alexandrian constitution. but since wounded honour gave occasion for the murder, we are far beyond the conditions of the alexandrian constitution. otherwise a very fine way would be found for wives to act the prostitute with impunity. for if it were possible, after adultery was admitted, to bring suit for divorce, they would find a safe refuge to escape the hands of justly angered husbands, and would be rendered safe by the protection of the said bull even though the divorce was not obtained and though the husbands had been offended because of their dishonour. but still less can such capital punishment be inflicted upon guido on the pretext that he assembled armed men, contrary to the rule of the apostolic constitutions and banns. for whenever the question is whether a husband may assemble men to kill his adulterous wife, we are still beyond the conditions of the constitutions; for they have place whenever men are assembled for an indeterminate crime, and crime does not follow; then indeed the provisions of the bull are applicable. but whenever men are joined together to commit crimes, and these actually follow, attention is directed to the end for which the men had been assembled, and the punishment for that is pronounced, nor is there any further inquiry concerning the beginning (that is, the assembling), as i have proved in my other argument. and i now add another citation [citations], where after the question was disputed, he asserts: "but certainly, notwithstanding what has been said above, in the current case, i do not believe there should be any departure from the decision of so many men, whom we may well believe have considered and written the entire matter with maturity and prudence for our most sacred lord clement viii." and at the end of this addition, it is testified that the apostolic chamber had so decided it at the order of the said pope. [citation.] this is also proved by the banns of my most illustrious lord governor, chapter , where they impose a penalty for assembling men for an evil end, if the evil end may not have followed. but they decide nothing when the crime for which the men had been assembled had been put into execution, because in this case the penalties for assembling cease and only the penalty for the crime committed is inflicted, as was said above. and that the assembling of men for the purpose of recovering one's reputation does not fall under the penalties of the apostolic constitutions (see _farinaccius_, _cons. _, _no. _). finally, the matter of carrying prohibited arms is still left for consideration. even if some authorities have asserted that this is not to be confounded with the principal crime, yet the contrary opinion is held by the majority; for the purpose is to be considered, which the delinquent chiefly had in mind. so bartolo holds in our very circumstances. [citations.] and on the point that one killing for honour's sake, with prohibited arms, is still to be punished more mildly, matthæus testifies that it has been so judged. [citation.] this also holds good in the more extreme case of several crimes, which can easily be committed separately and which tend toward different ends; yet, if they are committed at the same time and for the same end, the punishment only for the crime which was chiefly in mind is imposed. thus, if one wishing to commit theft climb over the walls of the city, even though he could commit that deed without the crime of crossing the wall (which is a very grave crime, according to farinaccius, _quaest. _, _no. _), even then only a single penalty, namely that for theft, is inflicted, as the one chiefly in mind; and this is a little harsher than that for crossing the walls of the city, but is not of utmost severity. [citations.] nor does it escape my notice that the banns of our most illustrious lord governor, chapter , seem to settle the question by deciding that the punishment for carrying arms ought not to be confounded with punishment for the crime committed therewith. nor do i fail to see, still further, that these banns do not include one of the companions, who was a foreigner and not of that district. but since by common law these banns receive a passive interpretation whenever arms are not borne for an ill end, and then some crime is committed with them (because the delinquent did not have in mind the crime which he committed), he is punished for both crimes, because at divers times he committed different crimes. but when any one bears prohibited arms with the purpose of murder, and then commits the murder, the chief crime of homicide, in view of which he bore the arms, is considered and the penalty for murder is inflicted, but not that for carrying the arms. [citations.] i beg you note that this crime in question is made important from the fact that those three who had no fear of ill, but who ought by all means to have feared, were slain, and not because of the kind of arms with which they were slain. the number of the victims, and not the instrument of their death, excited astonishment, and it would have been the very same if they had been slain with the longest of swords, or with sticks, or with stones. therefore it would indeed be a very hard matter that the fisc should be aflame over these murders, and not being able to demand the death penalty for them, should demand it for the carrying of arms. but beside this, count guido denies expressly that he owned, carried, or kept arms of unlawful measure. and although it is asserted by the four associates that at the time of the murders guido had in his hands a short knife, and had given the same kind of arms to his companions, yet these could not doom him to the ordinary penalty. thus farinaccius and others affirm after this matter has been well discussed and the contrary opinion confuted. [citations.] nor does he deny that he had on his person a dagger which was entirely lawful. but he did not have it with him at the murder, nor did he carry it for the murder, but only to defend himself if he should find in the aforesaid home outsiders ready to use force against him. and that was permissible to him; for there is ample right to bear arms of this kind throughout the ecclesiastical state, and (i may boldly add) even in the very city. because no mention is made of the city, although some places are excepted; according to that very true axiom: "the exception proves the rule in what is not excepted." [citations.] and he could the more readily believe that it was permissible for him to do so, because he had enemies in the city who threatened him there and made plots against him, as guido himself says; and therefore the bearing of arms of this kind was more necessary here than elsewhere. nor is it to the point that, because it is claimed he had killed with forethought, the privilege of bearing this kind of arms should not be granted him. for aside from what is said above and in the other argument establishing the fact that the aforesaid crimes were "for honour's sake," they cannot be said to be committed "after an interval." the objection might hold good if he had used the arms in the murder, but as this is not established, it does not seem possible to deny him the right to carry the arms. in any case, although strictly speaking he could be said to have done the killing when armed with the said arms, yet he should not be punished with the extreme penalty of death. in _caballus_, _case _, _no. _: "yet in fact in these cases, i have never seen the death penalty follow, but by grace it is commuted to a milder penalty." finally, he cannot be said to have incurred the penalty for prohibited arms from the fact that he was present at the murders committed by his associates with such arms; because the penalty of this kind which is due to one furnishing the said arms does not extend to the helpers and assistants. [citations.] i do not speak of domenico and francesco, because these last two, as foreigners, are not bound by our banns. but all matters fight for all of them, and every single ground for the diminution of the punishment, which favours count guido, also favours them all; since accessories are not to be judged on different grounds from the principal, as i have shown in my other argument. there i cited, not the authority of one or another doctor singly, but the decisions of the highest magistrates. clar also testifies that this opinion has been observed in actual practice. (§ _homicidium_, _sub no. _). but i earnestly beg that my most illustrious lord will be pleased to consider with kindly countenance and untroubled vision that count guido did the killing that his honour, which had been buried in infamy, might rise again. he killed his wife, who had been his shame, and her parents, who had set aside all truthfulness and had repudiated their daughter. nor had they blushed to declare that she was born of a harlot, in order that he might be disgraced. they also perverted her mind, and not merely solicited, but even by the strength of her filial obligation compelled her to illicit amours. he killed her lest he might live longer in disgrace, loathed by his relatives, pointed out by the noble, abandoned by his friends, and laughed at by all. he killed her, indeed, in that city which in olden days had seen a noble matron wash away the stains of shame with her own blood--stains which against her will the son of a king had imposed upon her. and thus she expiated the violent fault of another by her own death. (see valerius maximus and titus livius.) this city also saw a father go entirely unpunished, and even receive praise, who had stained his hands with the murder of his daughter, lest she might be dragged away to shame. [citations.] so much did the fear of losing his honour weigh upon his heart, that he preferred to be deprived of his daughter rather than that she should continue to live in dishonour, even against her own wish. count guido did the killing in their own home, that the adulteress and her parents, who were aware of her crime, might find out that no place nor refuge whatsoever was safe from and impenetrable by one whose honour had been wounded. he killed them lest deeds of shame might be continued there, and that the home which had been witness of these disgraces might also be witness of their punishment. he killed them because in no other way could his reputation, which had been so enormously wounded, find healing. he killed them that he might afford wives an example that the sacred laws of marriage should be religiously kept. he killed them, finally, that either he might live honourably among men, or at least might fall the pitied victim of his own offended honour. giacinto arcangeli, _procurator of the poor_. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases_: _roman murder-case._ _for count guido franceschini and his associates, prisoners, against the fisc._ _new memorial of law, by the advocate of the poor._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord: 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 , last past, and given in full in our summary, no. , 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 ): "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 , 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 : "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 , 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 : "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 : "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 : "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." 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 : "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 : "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 ): "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 : "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.] and, generally, whatever is done after an interval may be said to be done incontinently, if done as soon as a chance for doing it was given. [citations.] but so far is the law from believing that this kind of injury is remitted by a husband that it rather believes that the spirit of vengeance always continues in him. therefore it comes about that a wife may be held responsible for looking out for herself; so much so, indeed, that her death which follows thereupon may never be said to be treacherous. [citations.] muta speaks of the case of a husband who had his wife summoned outside of the city walls by his son, in order that he might kill her safely, and yet the husband was condemned only to the oars for seven years. this also makes some difference in the case, that certain authorities hold that a husband may indeed hide his wife's baseness for the purpose of taking vengeance upon her safely later on. [citations.] likewise he may have his wife hide his disgrace for the purpose of taking vengeance securely upon the one who wishes to offend her modesty, according to the very famous council of _castro_ , _lib._ . and this is all the more to the point because count guido was censured by the procurator of the poor himself, the defender of francesca and canon caponsacchi, for this appeal to the judge. [citations.] we have alleged many of these authorities in our past argument, § _et hæc nostra_: for they unanimously assert that husbands are considered vile and horned, if they do not take vengeance with their own hands, but wait for that to be done by the judges, who themselves ridicule and laugh at them. therefore it is no wonder if the luckless husband, after he had made the said recourse to the judge, as the foolish heat of his wrath suggested to him, wished to avenge himself for his lost honour. for he sinned that he might shun the censure of the vulgar and learned alike, and that he might not add this infamy also to his lost honour. nor is it at all to the point that the said count guido, in his confession in one place, beside speaking of his injured honour, also mentions the plots aimed at his life; because the force of honour was far the stronger in his mind, as he himself asserts (page ): "in consideration of the fact that they had taken away my honour, which is the principal thing." nor ought any consideration be given the other cause; because, as it is so much weaker, it should be made to give way to the aforesaid reason, as was proved in our former argument, § _et in omnem casum_, where for another purpose we have adduced matthæus [citation], who is speaking in these very terms. and so far as we desire to give attention to this other cause, it likewise is sufficient for escaping the ordinary penalty. [citations.] the fisc acknowledges the relevance of the abovesaid matters; he therefore has recourse to the circumstances attending the crime, namely, the assembling of armed men, the lawsuit going on between count guido and the comparini, the prohibited arms, and finally the place where the crime was committed. for francesca pompilia was detained in the home where she was killed, as a prison. but a response is easy because such circumstances can indeed somewhat increase the penalty of the principal in the crime, but not so much as to raise it to the highest degree, in such a way that count guido and his associates should come to be punished with death. for we find it decided in these circumstances as quoted by muta [citation]: "a decision was therefore made in view of the case in general, march, , before his excellency, wherefrom the ill manner of killing her was evident; for he had her summoned by her son, and afterward her body was discovered, which the dogs had eaten outside of the walls. leonardus was therefore condemned to the royal galleys for seven years." and sanfelici [citation] says: "and although some of them were condemned to banishment, it was because of their mutilation of the privates, a crime for which the fisc claimed they ought to be punished by the penalty of the _lex cornelia de sicariis_." and matthæus [citation] says: "when the matter had been more carefully considered in the council, it was decided that the husband had proceeded too treacherously in pretending absence, in taking his brother with him, and in killing with prohibited arms; because merely by the use of firearms a crime is rendered insidious with us, etc. and it was accordingly decided that, because of this excess, he should be condemned to the penalty of exile for four years and to the payment of ducats." and this at the stage of appeal was confirmed [citation] where we read: "and thus it was decided in the face of the facts proposed in condemning francesco palomi to the penalty of the galleys for ten years, etc., from the aggravating qualification of firearms. to the same penalty, antonio alvarez was condemned, who had deliberately killed his wife because she was playing him false, etc. the penalty was increased because he was judged to have omitted this earlier, since he did not complain of mere adultery, but of her living as a strumpet. and she could not do this without the indifference and connivance of the husband." and our reasoning is manifest, because it cannot be denied that count guido and his associates committed all the aforesaid crimes on the same ground of injured honour. because just as this excuse should be considered sufficient for escaping the ordinary penalty for murder, so likewise it should be considered sufficient for avoiding the other punishments whatsoever, appointed in the apostolic constitutions against those committing other crimes expressed in the same; as the principal purpose of the delinquent is always to be attended. [citation.] so it was declared on this point for the purpose of avoiding the penalty inflicted in the th constitution of sixtus v. [citation], against those who assembled armed men, whenever these men were evidently assembled for the purpose of committing some other crime, such as breaking prison and freeing those detained therein. and three very celebrated judges of the sacred court, namely coccini, blanchetti, and orani so decided. their decision is included among others gathered by farinacci [citation], and he testifies that it was so decided in the full chamber, in which the case was proposed and examined at the order of clement viii. of sacred memory. nor does what he wrote later on to the contrary in aid of the fisc, of which he was then advocate, stand in refutation; spada. [citation.] for this opinion of his was refuted clearly and rejected on the most substantial of reasons and arguments, [citations.] and in such conditions, for the purpose of avoiding the penalty of the banns or apostolic constitutions prohibiting the carrying of arms, i have alleged many authorities in my past argument, § _neque plures_ [neque vero], and above the rest, policardus, etc. [citation], who fully examines the matter. my honourable procurator of the poor gathers together others in his present argument, § _remanet tandem_. to these i add, caballus [citations], where it says that preparatory acts are to be included with what was prepared, and he testifies that it was so decided by the sacred council of naples. likewise, for the purpose of avoiding the penalty set for those killing one detained in prison, and so remaining in the custody of the prince, i have cited many authorities in my past argument, § _similiter nec aggravari_. to these i now add. [citations.] nor does it make any difference that policardus, in the place cited, and some of the other authorities recently alleged speak of homicide committed in a quarrel or for self-defence. for the attendant circumstance of a quarrel relieves one committing crime from the ordinary penalty of the crime only in so far as it overlooks the crime in one who, when provoked, wished to be avenged (as ulpian says), and insomuch as one swept away by a just indignation is not in the fullness of his intellect. [citation.] but both of these reasons without doubt stand in favour of the husband or of any one else committing murder for honour's sake [citation], even if they do so after an interval. [citations.] and in these very conditions, one killing an adulterous wife after an interval is excused because of just anger, which causes him not to be in the fullness of his intellect, etc. [citations.] ulpian [citation] also says: "he ought to be angered with a wife who has violated his marriage with her, and his wrath should spring from indignation for contumely when received, and his nature should arise so that he would drive her from himself in whatever manner he could." "for it is more difficult to restrain one's anger than to perform miracles," as st. gregory says. [citation.] the other authorities, indeed, who speak of persons committing murder in self-defence with prohibited arms or in prisons should likewise be in our favour. for the defence of honour in the case of men of good birth, especially of nobles, is to be likened to the defence of life itself. [citations.] and indeed it surpasses life, according to the words of the apostle in his first letter to the corinthians, chapter : "better were it for me to die than that any one should deprive me of my glory." and st. ambrose: "for who does not consider an injury to the body, or the loss of patrimony, less than injury to the spirit or the loss of reputation?" and the third philippic of cicero: "we are born to honour and liberty; either let us keep them, or die with honour." [citations.] so that he who spurns his own honour, and does not see to regaining it by vengeance, differs naught from the beasts. [citations.] indeed he should be considered even more irrational than the very beasts, according to the golden words of theodoric. as quoted by cassiodorus, which we have cited in our past argument, § _nec verum est_. [citations.] then as to the lawsuit going on between count guido and the comparini as regards the fraud about the birth, beside what was said recently, i pray that it again be noticed that the constitution of alexander does not enter where some provocation has arisen from the one injured, as farinacci well affirms [citation] in following a decision of the rota, which he places at the end of his counsel. and we have weighed this heretofore in our past argument, § _absque eo quod_. such provocation in the present case resulted from the injury which the said comparini inflicted upon this same count guido while the lawsuit was pending, because of their complicity in the said flight and adultery committed by their daughter on that occasion. the other lawsuit which francesca pompilia made pretence of bringing against count guido, for divorce, might be omitted. for beside the considerations offered by my honoured procurator of the poor in his present argument, § _quæ etiam aptantur_, this suit was brought illegally, because the warning of it, as i suppose, had reached only abate paolo, the brother of count guido, who had no authority in this matter. and this is true especially because it is not proved that the same guido had any knowledge of that suit brought, as is now pretended. as to blasio agostinelli enough has been written in the former argument, since he has not been examined anew, and in his former examination he confessed only that he was present at the said murders, but that he had no hand in them. so the more rigorous opinion of caballus cannot apply to him, who said that such helpers are not immune from the penalty of murder whenever they kill any one with their own hands. for the opinion of this author was proved by us to be erroneous, in our past argument, § _quidquid in contrarium_. i might wish to add something to what has been said in the past argument as to the alienage and minority of domenico and francesco; but it is not yet very clear under what law the fisc pretends that they miss these. therefore i will rest satisfied with this response, believing certainly that it will not chance that my lord advocate of the fisc may fashion his own allegations and also respond to ours without communicating them to me, as happened in the past argument very greatly to the astonishment of myself and of others. for he and i both ought to seek the truth and to be advocates of that, as both of us are officers of the prince according to the considerations of rainaldi. [citation.] who indeed desires that anything else than justice be administered, and especially when dealing with poor imprisoned wretches? in their cause, piety should triumph, because they are the treasure of christ. [citation.] desiderio spreti, _advocate of the poor_. an account of the facts and grounds of the franceschini case [pamphlet .] the property of pietro comparini did not amount to more than the sum of , or , scudi, subject to a reversionary interest, coupled likewise with the obligation to compound a good percentage of the income. he, therefore, had to live sparingly to avoid being reduced to a state of destitution, there being a bar against his use of the capital and of a part of the income. he was also too indulgent to his stomach and was given to laziness, and furthermore had taken a wife with a very small dowry. then lawsuits came upon him, the income of his bonds was reduced, and other misfortunes befell him, so that he was brought down to a state poor and miserable enough. so much so that he was several times arrested for debt and, after making a statement of his property, received from the papal palace secret alms each month. when he found himself in such straits, he decided to marry off francesca pompilia, his daughter, to some person who would undertake the burden of supporting him together with his wife, violante peruzzi, who was a very shrewd woman and of great loquacity. it was with her advice that he had undertaken the affair, and the marriage with count guido franceschini was considered suitable. for when the latter had conducted his new wife and her parents back to arezzo, his own country, he might be able to find some opportune remedy for their necessities, by the assistance in rome of abate paolo franceschini his brother, an active and diligent man; thereby putting in order the patrimony of pietro which had been sequestered and tied up by his creditors. therefore, when the dowry had been set at twenty-six bonds, with added hope of future succession to the rest of his property by virtue of the reversionary interest to which the wife was entitled, the bargain was accepted. this bargain was advantageous to pietro and his wife in freeing them from the straits in which they found themselves. and it was likewise advantageous to the franceschini, as the diligence of the abate, and some temporary expenditure by their house well attests. for they might well believe that they would gain in time the aforesaid property either entire, or little decreased. such from the beginning were the mutual purposes of that unhappy marriage. from this fact one may see how slight a pretext there is for saying that count guido, while making the arrangements, had tricked pietro and his wife by giving an inventory of property with an annual income of scudi, which income was later proved to be much less, because the primary end for which the marriage was concluded might very well have been obtained by showing a much smaller income. for it is known that when this inventory was shown by violante to pietro comparini, he said on seeing it: "ho, ho, it would have been enough for me if it had been only half as much." and indeed it would have been the greatest stupidity in pietro to have given his daughter a husband, upon the simple inventory of a foreigner and without finding out if this were true, so that the real impelling cause of the marriage had been the resources represented in the said inventory. not even on the mere grounds of propriety and civility may guido be reproved; because when the said inventory was produced by pietro in the trial, the abate paolo franceschini was very much surprised at it, so that he took his brother to task about it by letter, and guido replied that he had done it at the instigation of violante. for she desired the completion of the marriage, and, seeing pietro irresolute, she induced guido to give the abovesaid inventory, with some modifications, for the purpose of stimulating her husband thereto. the marriage was finally effected, and they all went back together to the city of arezzo. nor were the comparini mistreated there, as they tried to prove by the unauthoritative deposition of a servant, who had left the house in anger. one mere reading of this deposition is enough to assure one that she did this with a bad motive and at the instigation of others, as she herself has declared to various persons. this deposition shows sickeningly the distasteful prejudice with which it was conceived, and especially where she says that a little sucking lamb was made to serve as food for seven or eight persons throughout an entire week. and there are other matters alike unfit for belief. [the comparini] were indeed treated with all consideration and decorum, as monsignor the bishop and the governor of the city attest; and they are persons much better qualified to judge and much more worthy of belief than a malign and suborned servant. but you may also have the attestation of one who was serving in that household for thirteen months, during the time when the abovesaid pietro and violante were there, and he is able to tell many particulars of the good treatment which they received at the hands of the franceschini. it is quite true that disturbances of considerable importance arose in that household; but they were occasioned by the bitter tongue of pietro and the haughtiness of violante, his wife. for they laughed at all the proceedings of the franceschini, and thrusting themselves forward, with pretence of superiority, they brought upon the mother of the franceschini, and upon the rest of the family, bitter vexations, which were hidden at the time, to avoid violating the laws of hospitality. and notwithstanding all this, when pietro and his wife decided to return to rome, as soon as they expressed their wish, they were provided with money for the journey, and in rome with furniture to put in order the house they had left. as soon as pietro and violante arrived in rome, a judicial notice was dispatched at the instance of pietro, in which he declared that francesca pompilia was not really his daughter, and that therefore he was not bound to discharge his promise of dowry. to prove this fact, he brought the attestation of his wife violante. in substance, she declared that for the purpose of keeping her husband's creditors from their rights, by virtue of the reversionary interest, and also for the purpose of enjoying the income of the bonds, she had feigned that she was pregnant, and then, with the aid of a midwife, that she had brought forth a daughter. this was francesca pompilia, who had come of a most vile parentage. from this blameworthy act made public so suddenly throughout the entire court, there necessarily arose in the franceschini an intense hatred toward the authors of it. but they were able to restrain themselves from the due resentment in the hope that if francesca pompilia were not indeed the daughter of pietro and violante, as was supposed at the time of the espousal, the marriage might be annulled and they might thus purge themselves of such a blot on their reputation. witnesses of this feeling of theirs are found in the many authorities and experts who were requested by the franceschini to give thought to that point and to express their opinion of it. but as these did not agree, the franceschini were unwilling then to commit themselves to so doubtful an undertaking, in the prosecution of which they would necessarily be obliged to presuppose and confess that she was not the child of the comparini. but by such a confession they would be prejudiced in their interest in the dowry. and therefore they thought well then to pass the matter by that they might avoid exposing themselves to the danger both of losing the dowry and of being unable to nullify the marriage. nevertheless they opposed the notice, and obtained for francesca pompilia the continuance in quasi-possession of her daughtership and a decree for the transfer of the dowry bonds. but pietro appealed from the decree, and the case was continued in the _segnatura di giustizia_. this was followed by the copious distribution of pamphlets throughout rome, which had been printed by pietro to the very grave injury of the honour of the franceschini, not to say to their infamy. but the latter were able to restrain the just resentment of their irritated minds by cherishing the hope of making the court acknowledge (as did follow), no less the falsehood of their adversaries than their own truth. supported by this hope, they subsequently bore with all patience the many insults planned against them by various cliques, and the twists and turns for hindering the transfer of the dowry bonds, the comparini having trumped up various creditors, whether real or pretended. on account of this opposition, the franceschini were made to feel the inconvenience and expense of that transfer. nor have they had any benefit of the income; of which they have been able to obtain not even a two months' payment. to such a pitch had the affairs of the two parties come, when guido, waking up one morning, found that his wife was not in bed. as soon as he arose, he found that his jewel-box had been rifled and his wife had fled. nor was the suspicion lacking that she had given an opiate to guido and the entire household the preceding evening; and it was thought that this had happened at the suggestion of pietro and violante, as he had more than once heard threats of it. he travelled quickly along the way to rome, and after a headlong journey he overtook his fugitive wife, in company with canon caponsacchi of arezzo, at the inn of castelnuovo. and as he was alone and unarmed, and they were armed and resolute, he saw that he was unequal to avenging that excess. he therefore thought it well to have them arrested by applying to the authorities of the said place. the court had both of the fugitives captured by the police. they were consigned to the jurisdiction of monsignor the governor of rome, and were then conducted to the new prisons. the fisc, indeed, makes much out of the particular that franceschini should have avenged his insults in the act of overtaking them; but, as an adequate response, one should think of the impossibility of his carrying out his revenge because of their precaution in the matter of arms, for franceschini had heard along the way that the fugitives were travelling armed. in proof of this, also, when his wife saw her husband she had the hardihood to thrust at his life with bare sword. for this reason it was prudent moderation to check their flight then by arresting them. and this was all the more true because the adultery of his wife had not then been proved, and possibly he had a repugnance against imbuing his hands with the blood of her whom he had often held in his arms, as long as any hope was left alive of regaining his reputation in any other way than by her murder. but afterward there were found the mutual love-letters of the same fugitives, barefaced and immodest and preparatory to flight. and from the cross-examination of the driver it became evident that during their journey in the carriage they had done nothing else than kiss each other impurely. and from the deposition of the host at castelnuovo, guido found out that both of them had slept in the same chamber. finally, from the sentence or decree of the court in condemnation of the canon caponsacchi to banishment to civita vecchia for three years, for "having carnally known francesca," the notoriety and publicity of this adultery followed. let any one who has the sense of honour consider in what straits and perturbations of mind poor guido found himself, since even the very reasonless animals detest and abominate the contamination of their conjugal tie, with all the ferocity that natural instinct can suggest. they not only avenge the immodesty of their companions by the death of the adulterer, but they also avenge the outrages and injuries done to the reputation of their masters. for elian in his natural history tells of an elephant which avenged adultery for its master by the death of the wife and the adulterer found together in the act of adultery. and there are other examples also, as tiraquelli cites. [citation.] but returning to the series of events, it must be stated that, after the imprisonment of the fugitives, guido also came on to rome and was deeply affected and, as it were, delirious because of the excesses of his wife. he was comforted by his good friends with the hope that this attempt at flight, taken along with the lack of decent parentage of francesca (under supposition of which he had contracted the marriage) would facilitate the dissolution of that marriage, and in that way all the blots upon his reputation would be cancelled. hence, with this hope he returned to his own country, leaving the management of the affair to the abate, his brother. the secretary of sacred assembly of the council may be a witness of this; for abate paolo presented the matter to him and entreated him to propose, in that sacred assembly, this point of law as to the validity of the marriage then--that is, after a criminal sentence in the tribunal of monsignor the governor, had been obtained. in the meanwhile the same abate attended to the plan of petitioning the conclusion of the said criminal cause. when pompilia, to avoid conviction by the love-letters, had recourse to the falsehood that she did not know how to write, it was easy for the abate to convict her of that lie by showing the marriage agreement signed with her own hand, as well as by a cardinal now dead, by means of the recognition of the handwriting. but in spite of this, when the merits of the case had been made known everywhere, the same abate perceived that instead of his being pitied, little by little every one began to laugh at him and to deride him, as he has told several persons. perchance the attempt was being made to introduce into rome the power of sinning against the laws of god with impunity, along with the doctrine of molinos and philosophic sin, which has been checked by the authority of the holy office. so many persons would desire to blot out from the minds of men their esteem of honour and of reputation in order that they might sin with impunity against the laws of men and might give opportunity to adulterers without any check from disgrace or shame. and it is certain that the abate, seeing the cause unduly protracted, had just grounds for placing it at the feet of our lord [the pope], with a memorial in which he declared that he could no longer endure such important and such various litigation and vexation arising from that luckless marriage, and he prayed that a special sitting be appointed for all the cases--that is the ones concerning her daughtership, her flight, her adultery, the dowry, and others growing out of the marriage as well as the one concerning its annulling. but he had no other reply than: "the matter rests with the judges." so, with devout resignation to his holiness, he awaited the outcome of the said criminal trial, from which he hoped to regain, at least in part, the reputation of his house. in the meantime, pietro comparini was supplied with plenty of money by the generosity of some unknown person, possibly a lover of the young girl. he vaunted his triumph boldly in the throngs and the shops, places of his accustomed resort, and he praised the resolution and spirit of his daughter for having known how to trick the franceschini with a disgraceful flight and with the thievery of such precious things, and for having found an expedient to give to the judge in the trial such good replies with all details thereof. he also boasted that in a little while she would return to his home despite the franceschini. for he would bring so many lawsuits and scandals upon them that they would be forced to be silent and to let matters run on. for these statements we can have the attestations of many persons, in case they are needed. therefore, because of such stinging boasts and such irritations, the mind of guido was ever more embittered in spite of all the power he could master for restraining the impetus of his anger which had been provoked by such injuries. francesca pompilia had been previously transferred from the prisons into the refuge called _della scalette_, where she stayed for some months. then it was discovered that she was pregnant, and many attempts were made to secure an abortion. for this purpose, powders and other drugs were given several times by the mother. as this proved useless, she was remanded to the home of pietro and violante on the pretext of an obstruction and the necessity of relieving herself. there, at the approach of the physicians, her pregnancy was discovered. the truth is, that when her womb began to grow, the nuns did not wish for her confinement to take place within their walls, and therefore a pretext was found for removing her on the grounds of the said obstruction and the necessity of removing it. now at this point the abate found it necessary to break the bonds of his forbearance: for although it was indirectly that he was offended, that is, in the person and honour of his brother, nevertheless it seemed to him that every man's face had become a looking-glass, in which was mirrored the image of the ridicule of his house. therefore, being humiliated, though he was strong and constant in other matters, he often burst into bitterest tears, until he felt very much inclined to throw himself into the river, as he indeed declared to all his friends. and to free himself from such imminent danger, he decided to abandon rome, the court, his hopes and possessions, his affectionate and powerful patrons, and whatever property he had accumulated during thirty years in the same city. any one may imagine with what pain he parted from these and went to a strange and unknown clime, where he would not meet the fierceness of his scorners, who had been merited neither by himself nor his household. but the injury of guido, arising from a sharper and severer wound, within his very vitals as a husband, had the power to arouse his anger even to the extreme. nor did he consider it sufficient redress to punish himself with voluntary exile for the crimes of others; for such a resolution might be considered by the world as a plain proof of his weakness and cowardice. he soon had sure information that, during the month of december, pompilia had given birth to a boy in the home of the comparini, which child had been intrusted secretly to a nurse. he also heard that the infamy of the friendship with the said canon had been continued, inasmuch as he was received as a guest into the said home (as was said). for like a vulture, caponsacchi wheeled round and round those walls, that he might put beak and talons into the desired flesh for the increase of guido's disgrace. guido accordingly felt the wildest commotion in his blood, which urged him to find refuge for himself even in the most desperate of determinations. in the meantime he turned over again and again, as in delirium, his sinister thoughts, reflecting that he was abhorred by his friends, avoided by his relatives, and pointed at with the finger of scorn by every one in his own country. and the word went abroad that in rome they were selling his reputation at an infamous market. (this matter has moved the treasurer of the convertites, since the death of pompilia, to begin proceedings and to take possession of her property.) added to the above were the continual rebukes which he received because of his lost honour, so that he became utterly drunk with fury. he left arezzo with desperate thoughts, and when he had reached rome he went to that home which was the asylum of his disgraces. nor could he have any doubt how much the very name of the adulterer was respected; for when guido made pretence of delivering a letter of his sending, the doors were immediately thrown open; and so, scarcely had he set his foot upon the threshold, before he saw his dishonour proving itself before his very face; of which dishonour he had heretofore had only a distant impression in his imagination. then bold and triumphant, he no longer feared to upbraid her with unmasked face for all the insults which had been inflicted upon his honour in that household; and as he looked all around at those walls incrusted with his heaviest insults, and with his infamy, the dams of his reason gave way and he fell headlong into that miserable ruin of plunging himself with deadly catastrophe into the blood of the oppressors of his reputation. there is no doubt that franceschini has committed the crime of a desperate man, and that his mind, when it was so furious, was totally destitute of reason. as he had lost his property, his wife, and his honour, there was nothing else for him to lose unless it were his miserable life. for, as paolo zacchia, the learned philosopher and jurist, says in speaking of anger in man: "such and so great is its force that it does not differ at all from insanity and fury." galenus very clearly affirms this, adding that when in law it is known that crimes are committed in such a state, they are punished with a smaller penalty, even though it has to do with the very atrocious crime of parricide. calder [citation] also gives many other matters on our point in no. and the following numbers. and these theoretic propositions are verified in actual practice in guido; for he was so utterly mad and void of reason that he entered upon so great an undertaking even at an hour of the night when many people were around. and after that he took no precaution, such as any other person of sound mind would have taken in governing his actions. he set out by the high road on his journey of about seventy miles from the outskirts of the city without providing any vehicles, as if he were merely a traveller leaving rome. these circumstances are plain evidences of an offended and delirious mind. [citations.] st. jerome writes in his letters: "where honour is absent, there is contempt; and where contempt is, there is recurring insult; and where insult, there indignation; and where indignation, there is no quiet; and where quiet is wanting, there the mind is often thrown from its balance." nor in this case does the legal distinction enter as to whether the one driven by anger committed the crime in the first impulse of anger, or after an interval of time. for this distinction might have a place when the anger arose from an insult in some transitory deed, and one that was not permanent. but in the case we are treating, the insult provocative of anger consisted of frequent and reiterated acts; that is, not so much in the passing of the wife from the nunnery to the home of pietro under an empty and ridiculous pretence, but still more from her staying in the said home with the aggravating circumstance of his own infamy (as has been said above). accordingly, as the injury is permanent because of the continual affronts which the injured one received, so the vengeance is understood to be taken immediately and without any interval. this the defenders of the cause have sufficiently proved in their no less erudite than learned writings with their very strong arguments and their unsurpassable learning. nor does it amount to anything for one to say that the crime was aggravated, first, by the kind of arms used; for virgil [a. i. ] says: _furor arma ministrat_; nor, secondly, by the company of four, or let us say the conventicle; nor, thirdly, by the place, the excess, or the other circumstances considered by the fisc. for in a madman, everything is excusable, as it is axiomatic and a very sure principle that nature then arises in such a way that it drives a man from himself, in whatever manner is possible, etc. in conformity therewith, fracosto speaks as follows: "and in truth an ingenuous mind, and one that knows the value of its own honour and reputation, is very painfully offended in a part so sensitive and so delicate; and at such a time reaches the limit of madness and of desperation; for it has lost the light of reason, and in delirium and frenzy cannot be satisfied even if it succeed in turning upside down, if that were possible, the very hinges of the universe, for the purpose of annihilating not merely the authors but the places and the memory of its insults and shames." for "the rage and fury of a man does not spare in the day of vengeance, nor does it grant the prayers of any, nor does it accept in requital many gifts," as the holy spirit speaks on this point, through the mouth of solomon, in the sixth chapter of proverbs, at the end. with this very well agrees what st. bernard has very learnedly written in his letter to his nephew robert at the beginning: "anger indeed does not deliberate very much, nor has it a sense of shame, nor does it follow reason, nor fear the loss of dignity, nor obey the law, nor acquiesce in its judgment, and ignores all method and order." there is no doubt that samson reached this pitch when he fell into the power of his enemies. he suffered with an intrepid mind the loss of his eyes and other grievous disasters, but when he saw that he was destined to serve as a pastime in public places, and when he there heard the jeers and derision of the people, the anger in his breast was inflamed, so that, all madness and fury, he cried out: "let me die along with the philistines." and giving a shake to the columns which sustained the palace he reduced it to ruin: "and he killed many more in his death than he had killed while alive," as the holy scripture testifies. and christ himself, although he was very mild, and had the greatest patience while receiving opprobrium and insults without ever complaining, yet answered, when he knew that his honour was touched, "my honour i will give to no one." and it is certain that any one who cares for honour and reputation would rather die an honoured man beneath _mannaia_ than live for many ages in the face of the world with shame and dishonour. this argument, strong as it is, has succeeded in weakening one wise and earnest adherent of the fisc. and this is why the very learned pen of monsignor of the fisc has uttered the following period, which says: "but because the comparini claimed that the furnishing of food to francesca while in prison was the duty of franceschini, and the latter declared that it belonged to the comparini, the most illustrious and reverend lord governor, after having the consent of abate paolo, own brother of guido, and his representative in the case, assigned the home of the same comparini to francesca as a safe and secure prison under security." but this fact can be clearly explained so that it will not form an objection. when francesca pompilia was about to be taken from the prison to the nunnery, abate franceschini was asked to provide the food, with the statement that if he refused there would appear a third and unknown person who would assume the burden of it to their dishonour. therefore the abate wished once for all to put an end to any chance of receiving new insults; and to avoid every charge of preserving even the slightest sign of relation with this disgraceful sister-in-law, accepted a middle way proposed to him, namely, that lamparelli, as procurator of charity, should make provision for it by the disbursement of his own funds and should pay it back again by what reasonably belonged to the franceschini; for he reimbursed himself for it with the money which had been found upon the fugitives, and which had been stolen from the husband; at her capture, this money was placed on deposit in the office, where there remained so much of it still that, after all was over, the balance of it was consigned to the same abate. and as when the said francesca was transferred from the nunnery to the home of violante, all the preceding and succeeding circumstances made it very improbable that the abate gave his consent, and as this consent is not found registered among those acts, it seems very clear that it was not given at all. nor could he legally give it, for he was not the representative of his brother in that matter; for his authorisation confined him solely to the power of receiving back the money and other things which were deposited in the office. this is proved by his acts and by the story which the abate then gave to his friends and relatives; and it utterly destroys the assertion of the fisc, since abate paolo says that he was indeed notified that the young woman was obliged to find relief in an indisposition, certified by a physician, and that she was obliged to leave the nunnery and to go back to her father's home. to this, as it seemed a mere pretence, he replied that he could easily undertake to purge the wife in the nunnery without exposing her to such evident danger of greater shame. he also said that he wondered very much that the affection of a father had so suddenly returned in pietro comparini for pompilia, whom he and his wife had so often denied as their daughter. he wondered how they could both be, and not be, the parents of the said woman, according to their own desires to the injury of the house of franceschini. and if the solicitor, for the purpose of giving colour to the honour of the said lady, has falsely urged many justifications, it is to be noted that in substance all that he says on that point is founded on what with her own mouth she has said in her own favour and what she has proffered to free herself from the blame of her sins, both at this juncture and in the flight, as well as in the trial which may be referred to; in fact, quite the contrary is evident; and from the external tests which the convertites intended to make, but from which they abstained when they heard the news of the birth of the son. and would that it had pleased god that she had observed the laws of holy modesty! for in that case so great a misfortune would not have resulted from her whims. we should notice, further, that the declaration made by the wife in the face of death may be doubtful in itself, in the sense that after confession and absolution one's sin is cancelled as if it had never been committed, so that in a court of justice she would no longer have any need of pardon. therefore, from the above-cited circumstances and very strong reasons, there is no room to doubt that franceschini deserves the indulgence which the laws give to excesses that find origin from the stings of honour. and, if we were within the circumstances under which the case ought to be adjudged according to expediency, without any hesitation, franceschini should be punished mildly to diminish the force of immodesty and impudence. for the woman is not without adherents, who triumph throughout all rome in a coterie of treachery, both in public and in private. this is for the oppression and derision against husbands who have regard for their reputation. and they give the title of pedantry to that circumspection which one ought to practise for the preservation of his own honour. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases:_ _roman murder-case with qualifying circumstance._ _for the fisc, against count guido franceschini and his associates._ _summary._ _at rome, in the type of the reverend apostolic chamber, ._ summary [pamphlet .] no. .--_bond given by francesca pompilia to keep her home as a prison._ october , . before me, etc., francesca pompilia, wife of guido franceschini of arezzo, was placed at liberty, etc., and promised, etc., to keep to this home of pietro (son of the former francesco comparini), etc., situated in via paolina, as a safe and secure prison, and not to leave it, either by day or by night, nor to show herself at the doors or open windows, under any pretext whatsoever, etc., with the thought of having to return again to prison, etc. and after she has recovered her health to present herself at any time whatsoever, etc., at every command of the most illustrious and most reverend lord governor of the city; for the cause concerning which there was argument in the trial, etc., from proofs that may arise, whether new or not new; under the penalty of scudi, laid by the reverend apostolic chamber in the case, etc. this is followed by the surety in due form, notary for the poor. no. .--_certificate of the baptism of francesca pompilia._ i, the undersigned, certify, etc., as is found in the baptismal record, page , the particulars given below, namely: july , . i, bartolomeo mini, curate, have baptised the infant daughter born on the th of this month to pietro comparini and violante peruzzi, who live in this parish. to her the following name was given: francesca camilla vittoria angela pompilia, etc. in pledge of which, etc. rome this th day of february, . thus it is, pietro ottoboni, curate of san lorenzo in lucina. no. .--_letter of francesca, pompilia, written in the prison of castelnuovo to her parents._ my dear father and mother: i wish to inform you that i am imprisoned here in castelnuovo for having fled from home with a gentleman with whom you are not acquainted. but he is a relative of the guillichini, who was at rome, and who was to have accompanied me to rome. as guillichini was sick, and could not come with me, the other gentleman came, and i came with him for this reason, because my life was not worth an hour's purchase. for guido my husband wished to kill me, because he had certain suspicions, which were not true, and on account of these he wished to murder me. i sent you word of them on purpose, but you did not believe the letters sent you were in my own hand. but i declare that i finished learning how to write in arezzo. let me tell you that the one who carries this was moved by pity and provided me with the paper and what i needed. so as soon as you have read this letter of mine come here to castelnuovo to give me some aid, because my husband is doing all he can against me. therefore if you wish your daughter well, come quickly. i stop because i have no more time. may . directed to signor pietro comparini, my father, via vittoria, rome. no. .--_another letter of the same person, in which she calls the canon to task for dishonourable advances._ i give you infinite thanks for the octaves which you have sent me. all of these are the very contrary of the rosalinda, which was as honourable as these are immodest. and i am surprised that you who are so chaste have composed and copied matters so immodest. i do not want you to do in everything as you have done in these books, the first of which was so very nice; while these octaves are quite the contrary. i cannot believe that you, who were so modest, would become so bold, etc. no. .--_portions of the will of pietro comparini._ as to each and all of my properties, etc., i appoint, as my usufructuary heir, my wife signora violante peruzzi, etc. and when she dies i appoint in her stead, in the said usufruct of my entire estate, francesca pompilia, wife of signor guido franceschini of arezzo. and i do so because of her good character and because for a long time, yes, for many years, i looked upon her in good faith as my daughter, and thought that signora violante, my wife and myself were her parents. then i found out that both she and i were tricked in that belief, thanks to the vanity of the schemes, unfortunately conceived by my said wife, to make me believe in the birth of the same daughter. and because of a scruple of conscience after the marriage of francesca pompilia, this fact was revealed to me by signora violante my wife. and this pretence of birth was found by me to be a fact because of the information of it from persons worthy of credit. all this i grant, therefore, on the condition that the said francesca pompilia seek again her own city and stay here in rome, etc., in which city i hope she will live chastely and honestly, and will lead the life of a good christian. but if she do not come back to this city, or if when she has come back she live with shameless impurity (and may god forbid that), i wish that she be deprived of the said usufruct of my estate and that opportunity be given for a substitution in favour of the heir mentioned below, as proprietor, etc. because thus, etc., and not otherwise, etc. and because the chance might arise that she be left a widow, or that her marriage be dissolved, since a lawsuit is going on, which was brought before monsignor tomati by the olivieri as to her relation as child, and if the said francesca wish to marry again, or become a nun, i am willing that she separate from my estate as much as scudi for the purpose of remarrying or becoming a nun, if she shall so please. and i advise her not to marry again, lest she subject herself a second time to other deceptions. still further, i give her the power to leave by will scudi more of my estate. and in the event that signor guido die first, whereby there would come about the restitution to the said francesca pompilia, etc., of the money received by signor guido, to the sum of about scudi, etc. (which i think would be at least very difficult, if not impossible, because signor guido is wretchedly poor and his family is very poor), i wish that these moneys be not counted against the said francesca pompilia in said scudi, much less in her power of making a will, because then, etc. no. .--_authorisation for the management of his affairs made by guido franceschini to the person of abate paolo, his brother._ _october , ._ guido, son of the former tomaso di franceschini of arezzo, of his own will, etc., made and appointed, etc., to be his true, etc., representative, etc., special and general, etc., abate paolo franceschini, his own brother, now living in rome, etc., for the purpose of carrying on and defending, in the name of the said constituent, all lawsuits and causes, civil or mixed, already brought or to be brought for any reason whatsoever, and against any persons whatsoever, anywhere, and especially in rome, whether as plaintiff or defendant before any judge, either ecclesiastical or secular, whether before the congregation or tribunal, and before one or both, to give or receive charges, or to contest lawsuits, to take oath as regards the calumny, and to furnish whatever other testimony is lawful, etc., and to carry on and obtain each and all other necessary matters, in the same manner and form as the constituent could, if he were present, and as seems well pleasing to the said procurator, etc., promising, etc., and demanding, etc. i, joseph, etc., de ricii, notary public, etc., of arezzo was asked, etc., in pledge whereto, etc. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases:_ _for the fisc, against count guido franceschini and his associates, prisoners._ _response of the procurator general of the fisc._ _at rome, in the type of the reverend apostolic chamber, ._ romana excidii [pamphlet .] 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 ] 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.] still less applicable are the other authorities, who were adduced to escape the order of the constitution of alexander. for although it is true that for this crime the penalty threatened by the same decree does not enter, unless these three matters are concurrently present, namely craft, the occasion of a lawsuit, and the fact that no provocation has arisen (as farinacci holds [citation]), yet in our case, all of the abovesaid concur. as to the craft, there can be little doubt, since by the very confession of the defendants we have knowledge of the preceding discussion and deliberation for committing the murders. and decian and others affirm the charge of craft may arise from such a discussion. [citations.] the presence of a lawsuit is likewise undoubted; because, on the representation of pietro comparini, suit was not only brought before judge tomati as to the dowry promised and the goods subject to entail, for the exclusion of the said guido franceschini and francesca his wife, but also a sentence favourable to the said franceschini has been handed down by the same judge. but still further we may gather, from the confession of franceschini himself, that the provocation whereby he was moved to kill his wife arose because of the pretended adultery; on this point the counsel for the defence have principally insisted. nor can they deny that this same cause was introduced in the criminal prosecution in the presence of the judge by the same franceschini. it is quite necessary, then, to acknowledge that this ought to justify the application of the penalty of the alexandrian bull; for this decree speaks in civil as well as criminal cases, as is evident in the fourth paragraph of the same bull, where we read: "that successively in future times forever, each and all persons, ecclesiastical and secular, of whatever quality, dignity, state and grade of rank and prominence, in their own causes under benefit of clergy or secular, also in criminal and mixed cases, whether now before this court or pending for the time, their adversaries, or those following or helping them, or the advocates or counsel of them." and also in the place where we read: "if mutilation of limb, or death (which god avert) follow, they incur _ipso facto_ beside the loss of their right and case, the sentence for the outraged majesty of the law." we believe we have sufficiently canvassed these matters with galloping pen (there being but a brief three hours) to prove clearly that the foundations of the fisc affirmed in our former writings still stand fast, in spite of what has been recently deduced by the opposition so fully and so learnedly, but without legitimate proof. f. gambi, _procurator general of the fisc and of the reverend apostolic chamber_. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases_: _roman murder-case with qualifying circumstance_. _for the fisc, against count guido franceschini and his associates._ _a reply in matters of law, by the lord advocate of the fisc._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord: in the beginning of his recent information, my lord advocate of the poor has criticised as unjust the decree of this supreme tribunal, which inflicted the torture of the vigil upon count guido franceschini and his associates, for the purpose of getting confession of that most horrible crime committed by them. hence he claims that those confessions, given under the fear of it and ratified after it was over (as is the custom), cannot do the accused any harm. he attempts, indeed, to deny the justice of the said decree, not merely because of the absence of the quality of special atrocity (as required by the decree of paul v. of sacred memory for the reformation of the tribunals of the city), but also from the fact that the death penalty cannot be demanded for the crime under discussion. and this he claims is so (in spite of the unusual powers for ordering the torture of the vigil granted to this tribunal) lest there may be greater harshness in the course of the trial than in the penalty itself. [citation.] in the end of this said recent information, he also criticises me because, to the very great wonder of himself and others, i have failed in my duty of seeking the truth in that i have made certain allegations in the defence of the rights of the fisc, which i have not communicated to him. i thought he had complained quite enough about that orally, so that he might have spared us his new complaint. but it was not my duty to tell them to him, just as his informations, which he made for the defence (very learned indeed in their way), have never been made known to me by him. but i assert only this, that i have paid the price of much labour, lest i may seem to have failed in my office and in the reverence with which i attend upon my lord. passing over, therefore, my own personal apology, i go on to vindicate the decree of this tribunal from the injustice charged against it. i also omit proof of the quality of the crime as to whether it may be considered very atrocious, for i have abundantly argued this point in my past response, § _sed quatenus etiam_, with the one following. for i showed that this quality could be sustained because of the attendant circumstances which exasperated and raised the crime to the outraging of the majesty of the law, according to the provisions of the apostolic constitutions and the general banns. i think it is quite enough in my present argument to show that for this offence the death penalty should be demanded. i hope to accomplish this with little difficulty, since from the very kind of severe torture decreed, by judges of such integrity, the applicability of this said penalty is pre-supposed. and so since nothing new, whether in fact or in law, can be brought, which has not been already examined in relation to the cause for decreeing the torture, now that the confession of the accused has followed it, it is the duty of the judges to pronounce the execution of the well-deserved penalty, which has been long expected by every one. i have said that nothing new is brought by the defence, since their special attempt consists in repeating the plea of injured honour because of the pretended adultery committed by the wife of guido, with the help and conspiracy of her parents, who were barbarously slaughtered along with her. this plea is offered for the purpose of exciting the pity of my most illustrious lord, and the lords judges, in order that guido and his associates may be punished more mildly, according to the authorities adduced on that point in their first information, § _hoc stante_, together with the one following, and § _prædictis nullatenus_, likewise with the one following; and in the present information, § _verum et socios_. but the same response recurs, that for the accused this exception on the plea of pretended injury to honour can afford no refuge, because this plea has no foundation in fact and is irrelevant in law. for what difference does it make even if the mere strong suspicion of adultery is enough to excuse vengeance taken immediately by a husband against his wife or her lover? if she were found either in lustful acts, or in those preparatory thereto; then because of such a sudden grievance excited thereby, which provokes a man to anger, the penalty should very often be tempered according to the nature of the case and the persons. but it is quite certain that to escape the ordinary penalty of the _lex cornelia de sicariis_ for the murder of a wife committed after an interval, the mere suspicion of adultery, however strong, is not enough; but the clearest proof of it is required, either from the confession of the wife herself or from a condemnatory sentence following. [citations.] but such proof is entirely lacking in our case. for the luckless wife constantly denied the adultery even till the last breath of her life, as is evident from the sworn attestations of priests and others who gladly ministered to her after she had been wounded. for they unanimously assert that she always affirmed that she had never violated her conjugal faith. nor did she ask that such sin be forgiven her by the divine clemency; this assertion indeed should have much weight, since no one is presumed to die unmindful of his eternal safety. [citations.] nor are the responses given by the defence at all relevant; namely, that such proof in denial of the adultery is drawn entirely from testimony taken out of court, and extorted by the heir while a lawsuit was pending, to remove the annoyances brought by the monastery of the convertites, and that some of the undersigned were legatees. they also respond that since such an assertion as hers served to cover her own baseness, it should not be believed, especially as it was not sworn. and further, that although no one is presumed to be unmindful of his eternal safety, yet all are not supposed to be immune from sin, like saint john the baptist, which is especially true when the argument is about the prejudice of a third party and about the more severe punishment of an enemy of the one making declaration. now that all these claims are destroyed with so little trouble, the irregularity of the proof could stand in our way, if the fisc were obliged to assume proof and perfect it. but the burden of proof rests upon the accused, according to the authorities cited above for avoiding the death penalty, whenever a man kills his wife after an interval. the above attestations are brought merely to damage the proof of pretended adultery, offered by guido. in this case, certainly, such attestations are not to be spurned, especially when we consider the quality of the persons attesting, since they are priests of well-known probity, and it is incredible that they would be willing to lie. [citations.] the further objection that these attestations were extorted by the heir, while a lawsuit was pending, for the purpose of escaping the trouble brought upon him by the monastery of the convertites, is also removed by the same reply; because when one is arguing for the proof of an assertion given in the last days of life and in the very face of death, proof cannot be established, unless this hold good. and the heir is praiseworthy, because he is obliged to avenge the murder of the one slain, lest he be considered unworthy according to the text. [citation.] "heirs who are proved to let the murder of the testator go unavenged are compelled to give back the entire property," etc. he procured these attestations that he might guard the good fame of the testatrix; and this was rather because of his zeal for her good repute than to prevent the annoyances unjustly brought, and the quashing of these latter could be turned back for the exclusion of the pretended proof of the dishonesty of the unfortunate wife. still less can it stand in our way that some of the signers are legatees, since their interest is not large enough to prevent their giving testimony. [citations.] and this is especially true when one is arguing to prove a matter which happened within the walls of a home, and the proof of which, on that account, is considered difficult. [citations.] and such an exception to their testimony, so far as it has any foundation, is utterly removed by the number of the witnesses subscribed to the said attestations. [citations.] but [last of all], as to the objection that the assertion of one dying is not to be attended, when directed toward the exoneration of one's self, because no one is compelled to reveal his own baseness. this might indeed hold good if the adultery had been proved, and if it were not evident that, though wounded, she had died with strongest manifestation of christian penitence, which would exclude all suspicion of a lie. in this case such an objection does not hold good, but another very valid supposition takes its place, namely, that no one is believed to be willing to die unmindful of his eternal safety. [citations.] for mascardus [citation.] says that a confession given in the hour of death holds good, and he adds that this approaches nearer the truth, and cites in proof of it marsilius. [citation.] the latter affirms that if any one assert that a person making oath in the hour of death is lying, he says what is improbable. and mascardus concludes that this opinion is more just, and more in accord with reason and with natural law. and though he offers some limitations, none of these are applicable to our case; and the question about which he was arguing was concerning the assertion of one wounded, as to whether such assertion constituted proof against the one charged; and this differs by the whole heaven from our dispute, if we only note that the burden of proof does not rest with the fisc. nor does the assertion of pompilia when dying tend principally toward vengeance, since it is quite evident from those making attestations that she shrank with horror from that; as she always professed that she most freely pardoned her husband. these matters we have noted beforehand rather in super-abundance than because we were obliged to assert the justice of the decree of this tribunal. it will now be easy to escape the proof of pretended adultery, brought by the counsel for the defence. for so far as this proof is drawn from the other decree of this same tribunal, condemning canon caponsacchi for flight and carnal knowledge with francesca pompilia, the response which has already been given holds good: namely, that a title should be given no attention, but merely the proof resulting from the trial, and the penalty imposed by the sentence. and what if in that decree, along with the "title" of "complicity in the flight and escape of francesca pompilia," there was also added the title "for criminal knowledge of the same"? yet since in the trial itself no proof in verification of this was found, and since the penalty of three years' banishment does not correspond therewith, the mere title should not be given attention, according to the authorities adduced in my past response, § _non relevante_. and on account of the following reason, still less can such clear proof of the pretended adultery be established as is required to escape the ordinary penalty for taking vengeance after an interval. for at the instance of the procurator of the poor a correction was decreed by the judges, with the approval of my most illustrious lord, which substituted a general title relative to that suit, namely _pro causa de qua in actis_; and although this correction is not to be read in the record (commonly called the _vachetta_) in which decisions are usually noted, yet it was made in the order for the dispatching of caponsacchi to his exile and in the decree assigning to pompilia the home as a prison. (summary, no. .) and since the latter was made with the consent of abate paolo franceschini, we may assert that the said change of title became known to him because of his notorious solicitude in conducting the case; and so it would be very improbable that he had not carefully examined such a decree and the obligation made by pietro to furnish her food, without hope of repayment, and the bond given for her to keep the home as a prison. for these reasons his knowledge of that change should be considered as sufficiently proved. [citations.] and therefore the response falls to the ground that the decree could not be changed unless both sides were given a hearing. for while francesca pompilia, whose defence had not yet been finished, was unheard, much less could the title of criminal knowledge be included in the condemnation of the canon. for this would be injurious to her, not merely as regards her reputation, but also for the loss of her dowry, for which her husband was especially greedy. for in this way would an undefended woman suffer condemnation, and what is worse, as the event shows, would be exposed to the fury of her husband. and hence with justice was this correction requested and made. and even if this had not happened, a sentence given against the canon could not injure her, as it was a matter done with regard to other parties. [citations.] but it is quite gratuitous to assert that a change as regards the matter of the trial does also impart the same change as to the expression of the title of carnal knowledge. for since several titles were originally expressed in the decree of condemnation (such as complicity in flight, running away, and carnal knowledge upon which the suit was based) the statement of the cause contained therein is no more probable as regards one than as regards another, and certainly it is not probable as regards them all. for if they had wished to include all those in the modified decree, they would have said: _pro causis de quibus in processu_, for the singular number does not agree with several causes. [citations.] but in the prosecution the charge of "criminal knowledge" was not proved and the canon could not be condemned for that while francesca pompilia was unheard and undefended. this is on account of the indivisibility of the crime of adultery, which does not permit the division of the case for the purpose of condemning the one, while the case is pending as regards the other. and this is especially true when all parties are present and are held in prison. [citations.] the expression, therefore, _causæ, de qua in processu_, should be understood to apply only to the complicity in flight and running away (for this could be issued without the condemnation of francesca pompilia), and not to apply to "carnal knowledge." for the statement made should be considered applicable only to those matters with which the judgment relative thereto agrees. [citations.] and this claim of ours is rendered manifest by the mildness of the penalty to which the canon was condemned, namely, that of three years' banishment. this certainly does not correspond with the offences of running away with a married woman from her husband's home, bringing her to the city, and carnal knowledge of her. for inasmuch as the attendant circumstance of rape, spoken about, is punishable by the capital penalty, unless a priest is being dealt with, a far severer penalty would have to be inflicted for the adultery alone, if proof thereof had resulted from the trial. [citations.] my lord advocate of the poor acknowledges that the penalty was too light to expiate harshly such a crime, and especially in accordance with the constitution of sixtus, revived by innocent xi. of sacred memory. and therefore to avoid acknowledging the lack of proof, which might very well be inferred from the lightness of the penalty, he attempts to respond that the said canon was dealt with more mildly because he was a foreigner and because the crime under consideration had been committed outside of the ecclesiastical state. in this case one should be dismissed merely with exile. but this response is proved to be without foundation for many reasons. first, because on account of the well-known privilege of the city of rome, which is the country of all men, even those may be punished here who have committed crime outside of the ecclesiastical state, which is subject to the secular authority of the pope. and this is true, not merely for the handling of criminals, which is permitted to any prince, but for the trial of the crimes. [citations.] cyrill testifies that he himself had so held in , in the capitolian court, and farinacci testifies that it was so held in this same court in the year , in the case of gregorio corso, who had been condemned to the galleys, because he had committed murder in florence and had come here to rome, after seizing the horse of the one he had slain. and this was notwithstanding the fact that the cause was very sharply defended for the accused. [citations.] second, because this authority holds good whenever there is argument for punishing crimes committed by churchmen, who are subject to the jurisdiction of the supreme pontiff, and in the city can be punished for their crimes with the ordinary penalty, even though the crimes were committed outside of the temporal authority of the pope. [citations.] "rome is a common country and, therefore, in the roman courts any cleric or layman may be brought to trial, even though he did not commit his crime there." [citation.] third, because inasmuch as it was claimed that the approach to the city and the carrying away of the wife to the same were done because of lust, and to secure greater liberty for knowing her carnally, by taking her from the home of her husband, so the canon, on account of this purpose, would have subjected himself to penalties such as could really expiate the crime, and which also might be inflicted here in the city; for one is punishable with the same penalty who continues in a crime here, although he put it into effect outside of the state. [citations.] caballus [citation] holds that, for deciding the jurisdiction of a judge over crimes that have been committed, the person offending, rather than the offence, should be considered. [citation.] fourth, because the pretended carnal knowledge, so far as it can be said to be proved in the prosecution (and it can be verified that the decree was changed with relation to that), happened in the ecclesiastical state; for the strongest proof of that crime was drawn from the asserted sleeping together in the same bedroom at the inn of castelnuovo. [citation.] and therefore the canon could and should have been punished with condign punishment, not merely for his undertaking, but for the adultery, if that had been proved. and since this was not imposed, it may well be asserted that the canon was not at all condemned for "criminal knowledge," unless one wishes to criticise as unjust that decree, which imposed a mild penalty and one suitable merely to simple running away and complicity in flight, and which was much tempered because of the excuse brought by the procurator of the poor. therefore it may be asserted that the canon was not condemned for the pretended criminal knowledge, since the nature of the penalty well proves the nature of the crime, with which it should be commensurate, according to deuteronomy : "according to the measure of one's sin shall be the manner of his stripes." [citations.] and therefore, since the pretended condemnation of canon caponsacchi for criminal knowledge of francesca pompilia is excluded, the pretended notoriousness of the adultery resulting therefrom also falls to the ground. neither can this notoriousness be alleged against her undefended. and just as public vengeance, which is to be decreed by a judge, cannot be based lawfully upon it, so much less should private vengeance be considered excusable, when taken by the husband in murdering her after an interval. he is immune from the ordinary penalty for murder even according to the more merciful opinion only when the adultery is established by the very clearest proofs displayed in confession by the accused, or by a sentence given thereupon. likewise it would be superfluous to avoid the presumptions adduced by the defence, especially by the procurator of the poor, to destroy the proof of adultery drawn therefrom; for this single response would be enough, namely, that these proofs were all gathered together in the prosecution for pompilia's flight, made at the instance of count guido, he pressing hard to gain the dowry because of her adultery. and this was insisted on by the counsel for the fisc, who wrote acutely upon these matters at that time. and yet, in the report of the cause these presumptions were not considered by the judges because of their irrelevance. this is evident from the lightness of the penalty decreed against the canon. and so the examination of these cannot be renewed after the fisc has yielded and quietly acquiesced in the sentence, from which it could appeal if it considered itself wronged. nor could guido legitimately have recourse to such awful vengeance by his own hand. but lest some feature of the case may be left untouched, and that the justice of the decree may be more clearly asserted, i have taken the pains to confute these briefly. and since, in the first place, the cause of flight is considered by the defence in order that they may prove that the said flight was entirely illicit and was planned for easier criminal knowledge, the proofs brought for this purpose should be examined. the chief of these was drawn from the asserted letter of francesca pompilia, written to abate franceschini. this makes pretence that her parents urged her to poison her husband, her brother, and her mother-in-law, to burn the home, and to return to the city with her lover. but one cannot have a better refutation of this than the very tenor of that letter, including matters that are so improbable, yes and indeed incredible, that it was rightly rejected by the judges. for who can be found so destitute and ignorant of filial love and duty as to make himself believe that a mere child, not more than fourteen years old [citation], married away from her father's home, grieving bitterly for the departure of her parents, and wretchedly kept in the home of her husband, so that she was obliged to have recourse to ecclesiastic and laic authorities, could have written to her husband's brother (who was so unfeeling toward them), with a calm mind, of such base counsels and commands given by them, unless, as she ingenuously confesses, she was compelled by her husband to write it? nor could she, without great peril, refuse her husband, who was demanding this. such an improbability alone is enough to thrill with horror those reading it, and well shows that she had written this not of her own accord, but under compulsion. [citations.] and, therefore, there is no need to examine whether the qualification added to her confession is probable, namely, that her husband had first marked the letters of the said epistle, which she had afterward inked by tracing them with a pen; because she did not know how to write. for possibly she shuddered to confess that she had written such matters, even under compulsion of fear, to the injury of her father and mother. such fear is quite presumable in a wretched wife of tender age, destitute of all help, away from her father's hearth and in her husband's home. [citations.] mogolon says that from the absence of relatives, the presumption of such fear may arise. [citation.] and this is especially true after she had had recourse in vain to the authorities. nor is a sufficient proof to the contrary deducible from francesca's signature to the matrimonial contract, and from the letters that were said to have been written and sent by her in succession to the canon, or else thrown from the window. [citation.] for the very brief signature made in the marriage agreement does not show such skill in writing that with the same ease she could have written so long a letter, inasmuch as daily experience teaches that many are found who can scarcely write their own names. still less can the ability to write be said to be proved by the asserted love-letters; for these were constantly denied by pompilia. nor can these letters be said to be sufficiently verified by the assertion of the said witness for the fisc, namely, that she threw from the window a note, which the canon picked up and then departed. for aside from the fact that the witness stands alone and is of the basest condition, namely a dishonest harlot, and so unsuited for proving a matter [citations], she neither affirms, nor can affirm that the said letter was written by francesca pompilia. likewise the letters found in the prison of castelnuovo might have been written by some stranger's hand. and even though they had been written by her, inasmuch as they are of a later date, they do not prove her skill in writing at some past time; for she could have acquired this skill afterward because of desperation which sharpened her wits, for the purpose of inducing the canon to undertake the flight with her, so that she might escape the peril of imminent death. for in such matters at these, which are variable and can be changed, one cannot well argue from the present to the past. [citations.] and that in fact she did learn to write in arezzo after the departure of her parents is evident from her letter written in the prison of castelnuovo, and found among her private papers after her death. this is given in the present summary, no. . the proofs of the abovesaid letter [to abate franceschini] drawn from the letters of the governor of arezzo, of the reverend bishop, and of bartolommeo albergotti, are so far from excluding the legitimate reason for flight given by herself and the canon, during the prosecution, that they rather favour it. for although they criticised her for having such ill-advised recourse to them, they possibly did this to free themselves from censure for having thoughtlessly turned her away. therefore it is more probable that by them the minds of her cruel husband and of her mother-in-law, who was pitiless and implacable, as experience teaches us, were exasperated all the more. any one may well know that guido's mind was much more embittered after the lawsuit brought concerning the pretence of birth and the rescinding of the dowry contract, and after the publication of pamphlets about the domestic scantiness and the base treatment which they had suffered in the home of the couple in arezzo. his anger was also stirred by his jealous suspicion of the canon (although pompilia's love of the latter was merely pretended for the purpose of winning him) and by his exasperation, that increases the deadly hatred, which arises from a lawsuit about a considerable amount, and much more about an entire property. [citations.] such should the controversy about the pretence of birth be considered. nor can the just fear of the luckless wife as to her deadly peril be denied. and driven to desperation in avoiding this, she might well have fled; for if it is permissible because of blows beyond mere legitimate correction [citations] how much more permissible should it be considered, when the wife was continually afraid that he would kill her either with the sword or by means of poison. and, to avoid this, it was but prudent counsel for her to leave her husband and go back to her father's hearth. it would indeed have been better if she had won her security by having recourse to the right reverend bishop, in order that he might place her in some nunnery or with some honest matron; or to the lord governor, who would have considered her safety and the honour of her husband's family; or if she had fled in the company of some one connected with the household. but the fear of imminent peril does not permit one to take better counsel, and especially a wretched wife of tender age, destitute of all aid and exposed to the fury of her husband and her mother-in-law. and still further, she might well fear that new recourse to them would be in vain, since she had found the former so useless. nor could she find any better way of fleeing safely, wherein she thought lay the sole help for herself, than by using the help and company of the canon, who had been proposed to her for this purpose by the canon conti and by signor gregorio guillichini, relatives of her husband. it is incredible that they would have conspired against guido's honour without the strongest and most urgent reason and without confidence in caponsacchi's honesty and modesty. for one of them, namely gregorio, had offered himself as a companion for the journey and would have carried out his offer if his infirmity had permitted; as we read in the said letter of francesca pompilia found since her death and shown in our present summary, no. , which refers to the same causes, of the infirmity of gregorio and the imminent peril, which did not permit her to await his convalescence. and therefore she is worthy of excuse since she fled for dire necessity in company of the canon, a man of modesty well known by her (as is likewise evident from another letter in the summary of our opponents, no. , letter , in which she calls him the chaste joseph, and from the other letter, in which she commends him for his sense of shame). for if she chose this remedy under dire necessity, she should be excused according to the common axiom, "necessity knows no law." [citations.] nor is an illegitimate cause of flight to be inferred because of the dishonest love with which francesca pompilia pursued the canon in some of these letters. for although they seem amatory, yet they were ordained to the purpose of alluring this same canon, in order that he might flee with her; since, without him, she knew that she could neither carry that out, nor even attempt it. hence the letters can afford no proof of subsequent adultery. for although proof may result from love-letters, according to the authorities adduced by the defence in § _his praehibitis_, yet this is avoided, if the letters are directed to a permissible end, such as flight to escape deadly peril. for then, inasmuch as the end is permissible, the means are likewise so considered, even though these are not without suspicion; for they are not considered in themselves, but because of their end. [citations.] nor is the proof of adultery hitherto drawn from love-letters so very strong unless they include the implicit confession of subsequent fornication. [citations.] the following consideration is especially urgent in leading to the belief that the luckless girl thought the canon would conduct himself modestly during the journey. for in one of her letters she does not fail to take him to task (who had elsewhere been commended for honesty and modesty) because he had sent her questionable verses (present summary, no. ): "i am surprised that you, who are so chaste, have composed and copied matters so immodest." and further on: "i do not want you to do in everything as you have done in these books; the first of them was so very nice, but these other octaves are quite the contrary. i cannot believe that you, who were so honourable, would become so bold." from this sincere rebuke it is quite evident in what spirit these letters were written, even though they are filled with blandishments and proofs of love; for she shrank even from the dishonourable verses sent to her. hence the letters should be understood according to the intention of the one writing them, just as one's words are. [citations.] and should not the supposition that the unfortunate wife had destroyed her matronly shame in the journey be therefore considered trivial and improbable? for she had quite enough to do to provide for her own safety by headlong flight. nor is it probable that she was tempted by the canon, since the love between them is proved merely by the said letters which were preparing for the flight. and these letters show her solicitude for his modesty and continence, since for the mere sending of them she had made such complaint. for she feared lest he might become too bold, as is evident from details of the letter cited above. nor are examples lacking of continence observed during a longer and easier journey, which had been undertaken and completed by lovers, even though they might lawfully have indulged their love. hence it is not improbable that the wretched girl kept herself scrupulously within bounds; for she was in deadly peril, which she hoped to avoid by precipitate flight. the other proofs of this pretended adultery are far weaker, and were rightly ignored in the report of the case, both as regards the flight and as regards the decreeing of torment; for mutual love between her and the canon cannot be said to be sufficiently proved by the abovesaid letters; for they were preparatory to this prearranged flight. the entry and egress to and from the home of francesca by night is proved by a single base witness. nor should even such entry be considered to be for a bad end, since it was in preparation for the flight. for when we have a permissible cause given, to which a matter may be referred, it should not be attributed to one that is illegitimate and criminal. [citation.] to this reason also should be referred her readiness in showing herself at the window by day and night at the hiss which gave signal that her pretended lover was passing. for since her love might be a mere matter of pretence for the purpose of winning him to give her help in the flight by affording her his company in the journey, these marks of love can be of no further import than the pretended love itself. the unfortunate wife employed it as a stratagem, indeed, that she might provide for her own safety. and so this response recurs: "if the end is lawful, the means ordered toward carrying it out cannot be condemned." the pretended insidious manner of preparing for the flight and putting it into execution by means of an opiate administered to her husband and the servants (so far as it is proved, and it was by no means proved in the prosecution) affords indeed a proof of her flight, but not of adultery; for it was prearranged, not for that purpose, but to escape deadly peril, to which the wife would have exposed herself, all too foolishly, unless she had made sure that her husband, who was lying in bed with her, was sound asleep, or unless she had contrived some such easy way. the ardour shown in some of the letters is indeed a sign of love, according to the word of the poet: "love is a thing full of solicitous fear." [ovid, _heroides_, i. .] but since love was pretended for a legitimate end (as was said) she could also make a show of ardour for feigning love, since it tended toward the same end of winning his goodwill, so that possessed of his true service she might escape. therefore, from this pretended love and these feigned signs of love, one cannot argue that their departure together from the home of the husband and their association during a long journey gives proof of the pretended adultery; because even in true and mutual love continence has been observed, which is certainly more difficult. nor are the authorities adduced by the defence, in § _accedit quod_, applicable; because that text has regard to a woman spending the night outside of her husband's home and against his will, without just and probable cause, as is evident from the words of the same. this decision is not applicable to our case, since the wretched pompilia left her husband's home and went to her father's hearth that she might escape the deadly peril which she feared was threatening her. and so, since she did it for just and probable reason, the condemnation of the aforesaid text is turned away. and farinacci so explains the assertion. [citations.] "but it is otherwise if done for reason, because the mere spending of the night together does not of itself prove vice; for a case can be given where a wife spent the night with men, and yet did not break her marriage vow." [citation.] since this possibility is verified in our own case also, the proof of subsequent adultery cannot be inferred from her flight and association with him in the journey, for the purpose of providing for her own safety. their mutual kissing on the journey, so far as it is proved, affords no light presumption of violated shame; but the proof of it is too uncertain; for it rests upon the word of a single base witness, who swears to matters that are quite improbable, namely that, while he was driving their carriage very rapidly, he saw francesca pompilia and the canon kissing one another. how full of animus this deposition really may be is evident from this fact--that during the night he saw a momentary and fleeting deed, without giving any reason for his knowledge, such as that the moon was shining or that some artificial light afforded him the opportunity to see it. [citations.] the improbability, or rather incredibility, is increased because, while the witness was intent on driving the carriage with such great speed as to seem like flying (as another witness testifies), how could he look backward and see their mutual kissing? such an improbability would take belief away not merely from a single witness, but from many of them. [citation.] furthermore, there is the possibility to be considered that the jostling together of those sitting in the carriage might have happened from the high speed; and from this fact an over-curious witness might believe that they were kissing each other, although, in fact, the nearness of their heads and faces to one another might indeed be by mere chance, and not for the purpose of shameful and lustful kisses. because whenever an act may be presumed to be for either a good or a bad end, the presumption of the evil end is always excluded. [citations.] and so in the said report of the prosecution for flight, this presumption was justly passed over because of lack of proof; nor would it have been rejected otherwise. nor can this improbable and prejudiced deposition of the said witness receive any support from the pretended letters, in which francesca thanks him for the kisses sent, which she says would be dearer to her if they had been given by the canon himself, and sends him back ten hundred thousand times as many. for it cannot be thence inferred that if the opportunity were given their mutual kissing would follow, since these words were offered as serviceable and alluring for the purpose of winning him over; nor do they involve an obligation. [citations.] and therefore they do not lead one to infer that they were carried out, especially since francesca many and many a time warned the canon to observe due modesty. and when she found that he had transgressed its limits by sending her dishonourable verses she abjured him not to become bold in urging his passion. this is far removed from impure desire to receive his kisses, which is formally stated in the said letter, as it is without any thought of injuring her matronly honour. the use also of laic garb, in which the canon was found clothed, can afford no proof, because, as he is no priest, he cannot be said to be forbidden to do so on a journey. and this was probably arranged in good faith to conceal himself and to avert scandal, which might be conceived at seeing a priest with a woman in the flower of her age and, as i have heard, of no small reputation for beauty, journeying without the company of another woman or servant. [citation.] and so the authority of matthæus sanzio, etc., is not applicable, because in his case there was no concurrent cause on account of which the priest might approach with improper clothes and girded with arms; and he was found by the husband, either in the very act or in preparation thereto, and was killed on the spot. in such a case the proofs of adultery may well be admitted for the purpose of diminishing the penalty, and they were gathered by the same author to that end. their sleeping together on the same bed, or at least in the same bedroom, at the inn of castelnuovo, was not given consideration in the report of the prosecution for flight, because of defect of proof. this charge was indeed denied by francesca pompilia, and the canon frankly confessed merely that he had rested for a little while on another bed in the same room. nor ought a brief stay in that room be magnified to a crime, since it should be attributed to his guardianship of the said francesca, whom he was accompanying on the journey, and hence was under obligation to guard her lest some evil might befall her. whenever an act may be said to be done for a good purpose all suspicion of evil ceases. in these very circumstances, gravetta [citation] says that the interpretation should tend toward lenience, even though the harsher interpretation seems the more probable. nor does it suffice as a full proof of adultery (if one is arguing a criminal case) that a young man be seen alone and naked with her, and that he be found locked in the bedroom with the wife, even though he have his shoes and clothing off; because these matters may be merely preparatory. and much less can proof of adultery arise from his brief stay in the same bedroom for the purpose of protecting her. nor can proof of their having slept together be drawn from the deposition of the servant of the same inn who asserted that he had been ordered to prepare only a single bed. for it does not follow from this that both of them slept in it; but this was done because only pompilia wished to rest a little while to refresh her strength, which had been exhausted by the swiftness of the journey they had made. the canon was keeping guard over her and preparing for the continuance of the journey; and so, when the husband arrived, he was attending to this by ordering that the carriage be made ready. hence no proof of their having slept together can result from this deposition, and it was justly rejected by the judges, so that it needs no further refutation. and although francesca pompilia, in her cross-examination, tried to conceal a longer stay at the said inn by asserting that they had arrived there at dawn, yet no proof of adultery may be drawn from the said lie, for she made that assertion to avoid the suspicion of violated modesty, which might be conceived from a longer delay and more convenient opportunity. and so, inasmuch as her confession would have done her no harm, even if she had acknowledged it with circumstances leading to belief in the preservation of her sense of honour, neither can this lie injure her. [citations.] since, for these reasons, the proof of the pretended adultery is excluded and almost utterly destroyed, no attention should be paid to the fact that count guido, in his confession, claims the mitigating circumstance of injured honour, as regards both his wife and his parents-in-law; and that this confession cannot be divided for the purpose of inflicting the ordinary penalty. for authorities of great name are not lacking who affirm that a qualification to this end added to a confession, ought to be rejected; and above the others, is bartolo [citation], who proves this conclusion by many reasons, and responds to those given contrary [citation], where it is said that a judge should not admit such qualified confession. [citations.] nor is such a plea of injured honour always in one's favour in avoiding the capital penalty, but only when vengeance is taken immediately; or after an interval, according to more lenient opinion, when the adultery is proved by condemnatory sentence or by confession. but the reins of private vengeance would be relaxed far too much to the detriment of the state if, when proof of adultery were lacking, a stand could be made for the purpose of diminishing the penalty upon some qualification added by the defendant to his confession. because in this way a witness might make a way of escape in his own cause, which is not permitted to any one. [citations.] and nothing more absurd can be thought of than that the burden of proof incumbent upon him for escaping the ordinary penalty might be discharged by the mere assertion of the defendant. nor should we admit the opinion that, even when the adultery is proved, a husband may kill, after an interval, an adulterous wife without incurring the capital penalty, since the weightiest authorities deny that. [citations.] bartolo, in distinguishing between real and personal injury, affirms that when injury is personal, it should be resented immediately; but if it be real it may be resented after an interval. [citations.] and gomez declares: "i hold the contrary opinion, indeed, that a husband may be punished with the ordinary penalty of such a crime as murder; and for this reason he may not by any means be excused, because murder cannot be committed to compensate for a crime or for its past essence, unless one kill in the act of flagrant crime," etc. and in subsequent numbers he responds to reasons given to the contrary. [citation.] gaillard, after he says that murder committed for honour's sake is permissible, states that this exception should be understood to hold good if the injury be resented immediately, but that it is otherwise if done after an interval. in this case the retort is more like vengeance than the defence of honour, and the offender is held to account for the injuries. [citation.] much less can it be claimed that the vengeance was taken immediately because the husband executed it as soon as possible, according to the authorities adduced by my lord advocate of the poor [citation], where he tries to show that since guido was unarmed, or insufficiently armed (that is, he was girded only with a traveller's sword), he could not attack the wife accompanied by the canon; for caponsacchi, as he claims, is strong and bold, and accustomed to sin in that way, and was carrying firearms. and the wife showed herself ready to die in the defence of her lover; for it is said still further that the wife rushed upon guido with drawn sword, and was about to kill him, if she had not been checked by the police officers. but the opportunity to kill an adulteress is not to be so taken that a violent death may be visited upon her with all security and without any risk. for every legal opinion giving excuse for diminishing the penalty shrinks from this. for such diminution of the capital penalty follows because of the violence of sudden anger, which compels the husband to neglect the risk to his own life, that he may avenge the injury done him by the adultery. and so this first opportunity, as spoken of by the authorities, in order that murder may be said to be committed immediately, should be understood to be whenever an occasion first offers itself, in excusing the delay in taking vengeance either because of absence or for some other just reason. such is the fact in the case about which matthæus sanfelix writes, _contr._ . for in that case, the adultery was committed in the absence of the husband, and the wife had run away, so that he could not have avenged himself earlier, as is evident from the narrative of fact, given in no. , and no. established this conclusion: "so they are excused if they take vengeance as soon as possible, since it then seems that they killed incontinently." but who can say in our case that the husband took the first chance, since when he found his wife in the very act of flight, at the tavern of castelnuovo, he abstained from vengeance with his own hand, and turned to legal vengeance, to which he had always clung. and indeed he charges himself with the worst baseness when he asserts that he was unequal to the task of taking vengeance because of the fierce nature of the canon; since, when the latter had been arrested, guido could have rushed upon his wife. nor ought the kind of arms they carried to have alarmed him, because, according to the description made in the prosecution, it is apparent that the canon was wearing only a sword. and so they were provided with like arms. he would not have taken such care of his own safety if he had been driven to taking vengeance by the stings of his honour that needed reparation, even at some risk to himself. for just anger knows no moderation. and he should lay the blame on himself if, alone and insufficiently armed, he had followed up his wife, who was fleeing, as he might fear, with a strong and better-armed lover. his very manner of following her proves the more strongly that his mind had turned toward legal vengeance, for the purpose of winning the coveted dowry, rather than to vengeance with his own hand for recovering his honour. for facts well show that such was his thought. [citations.] likewise the delay of the vengeance after the return of the wife to her father's home excludes the pretended qualification that the vengeance was taken "immediately," because he could not put it into execution sooner. for the return home took place on october of last year, and the murder was not committed till the second of january of this year. and we should rather assert that he was waiting for her confinement, which took place on december , in order that he might make safe the succession to the property, for which he was eagerly gaping; because he immediately put into effect his depraved plan by destroying his wife and her parents with an awful murder. hence, from a comparison of these dates it will be easy to see this, and it is evident with what purpose he committed the murders, and whether this vengeance for the asserted reparation of his injured honour may be said to have been undertaken "immediately," that is, as soon as opportunity was given, according to the authorities adduced on the other side. then when he had chosen legal vengeance by the imprisonment of the wife and of the pretended lover, and by the prosecution of the criminal cause, it was not permissible for him to go back to vengeance with his own hand; and in taking that he cannot be said to have taken vengeance immediately. he also violated public justice and the majesty of the prince himself. this single circumstance greatly exasperates the penalty and increases the crime. [citations.] [but the above is true] in spite of the fact that the conclusions adduced by the advocate of the poor, in § _et tantum abest_, may be applicable, and likewise the authorities approving those conclusions, on the ground that it is not presumable that the husband has remitted the injury, but rather that his desire to avenge himself has continued; and that this excludes the charge of treachery, even though the husband use trickery in taking vengeance. because in the present case the question is not as to the nature of the murder, from which it might be claimed to have been treacherous. the husband indeed did not conceal his injury, but rather laid it bare by turning to legal vengeance. although this is possibly less honourable, yet since it was pleasing to him, for the purpose of gaining the dowry, he could not when frustrated in this hope, because the adultery was unproved, take up again the vengeance with his own hand. and this is true even though he pretends as an excuse for his delay that he could not accomplish it sooner. for since the delay and hindrance arose from his own act he could not take therefrom the protection of an excuse. [citations.] but, however he might find excuse for the barbarous slaughter of his wife while under the authority of the judge at the instance and delivery of her husband, certainly the murder of pietro and violante should be considered utterly inexcusable. in his confession he has tried to apply to them also his plea of injured honour, because of their pretended complicity in urging the flight of his wife and in her asserted dishonour. yet no proof of this qualification can be brought, nor did the slightest shadow of it result from the prosecution for flight. and this is proved to be improbable, and utterly incredible, from merely considering the fact that abate franceschini, brother of the accused and confessed defendant, would not have consented that she be committed to their custody if he had had even the slightest suspicion of their complicity, since he so keenly desired the reparation of their honour. this fact, which was plainly confessed in an instrument prepared in the statement of fact in the italian language [pamphlet ] and very stoutly denied by the procurator of the poor, was admitted by his own wonderful ingenuity in denying merely that notice had reached the husband, or in claiming that the fisc could pretend to no more than mere presumptive knowledge in guido. but, still further, such knowledge is quite probable and is drawn from strong proof. for it is very probable that guido was informed by his brother of his wife's departure from the monastery, of her establishment in the said home, of the obligation assumed by her parents to provide her with food, and especially of her detected pregnancy. [citation.] but we are not now arguing to prove the husband's knowledge thereof, but to draw from that consent of abate paolo a proof which would exclude the pretended complicity of pietro and violante in the dishonour of the wife, which latter is by no means proved. so far is such complicity from being proved as regards pietro, that the very contrary is quite evident from his will, made in , after litigation had been instituted about pompilia's pretended birth. in this will, notwithstanding the litigation, in the first place he leaves as his usufructuary heir violante his wife, and after her death francesca pompilia, laying upon her the obligation to dwell in the city and to live honourably. this is evident from the details of the said will given in our present summary, no. . in this he also asserts that she had thus far conducted herself honourably, and he claimed to leave the annuity to her because of her good manner of life. and so it becomes still further incredible that he, while alive, was willing to conspire in her dishonour, from which he shrank even when dead. for the income was to be taken from her if she should live a dishonest life, and he urged her in case her marriage were dissolved to assume a religious dress, and he left her a fat legacy to that end. nor can it afford any proof of this pretended complicity that when guido had made pretence of delivering a letter sent to them from the canon, the doors were immediately opened by violante to the assassins. the attorneys for the defence try to argue from this ready credulity that the name of the lover was not hateful to violante, and that hence his intimacy with francesca was not displeasing. but since the canon was the author of her liberation from deadly peril by bringing her from her husband's home to her father's hearth at the neglect of his own risk, it should not seem wonderful that violante should give proof of a grateful mind for the help given her daughter and should open the door. nor can one infer therefrom consent in unchastity, from which their past acquaintance had been entirely free. much more is this so at a time when he himself was absent and in banishment at civita vecchia. therefore the true cause, on account of which the comparini also were murdered, could be no other than the hatred with which the husband had been aflame; [and this first of all was] because of the lawsuit concerning the supposed birth, which they had brought, and which had deceived him in his hope of gaining a fat dowry and inheritance; [and second] his desire for vengeance because of the pamphlets distributed at the time of the said lawsuit, and which had exposed the meagreness of the home comforts and the wretched treatment they had received in the home of the husband. these two do not excuse guido from the penalty for premeditated murder, and indeed increase it, even raising it to the crime of _læsa majestas_, according to the well-known order of the constitution of alexander, as was proved in our past information, § _accedit ad exasperandam_. to escape the penalty assigned thereto by the disposition of this decree, in vain does he turn to an excuse drawn from supervening provocation. [citation.] but so far as it is claimed that this crime resulted from the counsel they gave toward her flight, and their complicity in the same, the proof of such complicity is entirely drawn from the asserted letter, written by francesca pompilia to abate franceschini. but this letter has been completely rejected, and even spurned by guido himself, since in the prosecution for flight we find no insistence was made that action should be entered against pietro and violante for their pretended instigation. pietro, moreover, had long ago broken off the lawsuit brought as regards the pretended birth and the revocation of the dowry contract, and so this complicity cannot be made to seem the sole provoking cause, which would exclude _causa litis_. for such a cause should be true and not pretended, and should be in accord with the crime committed. [citations.] these excuses, indeed, which are claimed to be drawn from complicity in the asserted dishonour, are still further excluded by lack of proof, both of the impurity and of their connivance therein; and so the provocation implied therefrom is shown to be entirely irrelevant, and possibly fraudulent. the other suit for divorce, brought in the name of francesca pompilia, it is vainly claimed is made void because of the asserted invalidity of the summons; for this summons was executed against abate franceschini, who lacked the authority of a proxy. yet his authorisation was quite full enough for a lawsuit, as is evident from its tenor as given in our present summary, no. , and accordingly when a suit was brought it was ample for receiving a summons. [citation.] we are also dealing with the conditions of the constitution of alexander and of the order of the banns given against those who commit offence on account of lawsuits. hence the reply is not relevant, which is given by the procurator of the poor in § _quae etiam aptantur_, that when the dishonesty of the wife is established her impunity from the wrath of her husband, who would take vengeance, should not be permitted by the introduction of a divorce suit. nor can such murder be said to be committed for the reparation of honour when committed in anger at a lawsuit. for he takes for granted as proved, what is in question, namely, the dishonour of the wife, the proof of which is quite lacking. and guido might have proceeded to such an extreme if, as soon as the adultery was committed, his wife brought a suit for divorce; but it is otherwise since he tried that revenge after the way of legal vengeance had been chosen by bringing criminal charge for the pretended adultery and for the purpose of winning the dowry. for after he was frustrated in this hope (since no proofs of adultery resulted from the prosecution), and after her husband's mind had been exasperated, she ought to be permitted to provide for her own safety by begging for the remedy of divorce. and while such judgment is pending any murder inflicted upon her ought surely to be expiated by the penalties inflicted under the sanction of the alexandrian constitution and of the banns. for the provision of this decree is applicable, since the murder was committed while the criminal cause, brought against her for pretended adultery by her husband, was still pending. and this decree includes both civil and criminal suits, as is evident from reading it. likewise the assembling of armed men, and their introduction into the city for accomplishing more safely the murder of the entire family, increases the crime to _læsa majestas_, and also necessitates the increasing of the punishment, as was affirmed in our former information. nor is this avoided by the replies given, or rather repeated, by the defence, and especially by the response that since the principal offence was committed for honour's sake (and hence the ordinary penalty of the _lex cornelia de sicariis_ has no application for that reason), so likewise the penalty for assembling men, imposed by the apostolic constitutions and the general banns, cannot be inflicted; for the latter is included with the penalty for the principal offence, which alone is to be attended, since the spirit and purpose make differences in crimes. [citations.] because the order of the said constitution and banns would prove utterly vain if the penalty for assemblage should cease, whenever the assembly were made for the purpose of committing some crime that is punishable with a milder penalty. [citation.] this bull indeed is applicable even when men are called to arms in a permissible cause and for a good end; because by it the supreme pontiff wished to provide for the public security and to restrain the audacity of those laying down the law for themselves. hence all the more shall it have place when the assembly may be made for an evil end, namely for committing crime, even though the crime may not deserve the ordinary death penalty, and when the crime actually follows. [citation.] spada gives this reason, that the pontiff in establishing this constitution considered only the uproar and other ills which are accustomed to arise from the assembling of armed men to the injury of the public peace. and although his opinion was rejected by the authorities adduced by his honour, the advocate of the poor, in § _non refragante_, this refutation does not apply to the assembling of armed men to an evil end (even though this end is not so criminal that the death penalty may be inflicted), but to their assemblage for a permitted cause of regaining possession immediately, by meeting force with force. even in this latter case spada holds that there is place for the order of the bull. hence the refutation given above does not prevent the application of the provision of the abovesaid constitution to our case, since the assembling was prearranged for the murder of an entire family, which was put into execution with reckless daring. nor may the opinions of the said judges of the sacred rota, requiring that the assemblage be directed against the prince or the state, and not to commit some other crime, stand in the way; because if this qualification were accepted as true the decree would be vain which had raised the act to the crime of _læsa majestas_ and rebellion; for this crime would result plainly enough from the deed itself, and from the intent to disturb the peace of the prince and the state. and so far as the opinion affirmed by these authorities does have foundation, it can be applied when we investigate the order of the constitution, and not of the banns issued later. for this decree would prove vain and useless if the capital penalty, imposed thereby against those assembling armed men, could be applied only when the crime for which the assembly was made was punishable with the same penalty. and even if this necessity be admitted, the application of the constitution cannot be avoided, because no plea of injured honour can be alleged in excuse for the murder of pietro and violante, and it had not at all been proved as regards francesca pompilia. 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 ], 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 .] _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._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum cum qualitate [pamphlet .] most illustrious lord: the matters deduced by his honour, the advocate of the poor, for the defence of guido franceschini, who is accused of three murders with very grave qualifications which magnify the same, are of no real force in proving [first] that he should not be punished with the ordinary penalty of the _lex cornelia de sicariis_, inasmuch as he had confessed these crimes, and [secondly] that simple torture only should be demanded for gaining the truth as to these, and that the torment of the vigil should be omitted. i will attempt to show this, in responding to these points singly, so far as the excessive scantiness of time admits, and will keep my eyes on the rights of the fisc, as the duty of my office and the dire atrocity and inhumanity of the crime demand. the chief ground taken by my lord consists in placing on an equality [first] a case of vengeance taken immediately by the husband with the death of the adulteress found in her sin, and [second] that of one slain after an interval when the wife is plainly convicted of adultery (as he claims is proven in our case). but this falls to the ground both in fact and in law; and hence the inference for the moderation of the penalty drawn from this same parity is likewise shown to be without foundation. in fact, the proof of the pretended adultery is quite deficient according to what i deduced fully in my other information. in that, i have confuted singly his proofs, or rather suspicions, resulting from the prosecution, to which his honour attaches himself. i have shown that the wife's flight in company with canon caponsacchi, the pretended lover, was for a legitimate reason (namely the imminent and deadly peril, which she feared), and not from the illicit impulse of lust. the participation and complicity of the canon conti and signor gregorio guillichini, relatives of the accused, in forwarding the same, ought to prove this. for they would not have furnished aid if she were running away for the evil purpose of violating her conjugal faith, even to their own dishonour. but they well knew the necessity of the remedy, and that it was to free her from peril. and a witness for the prosecution in the same trial for flight swore to having heard this from signor gregorio. and they gave their aid in carrying this out. nor is it at all relevant that, in the decree in condemnation of the same canon to banishment in civita vecchia, the title of "carnal cognition" was written down; because, as was formerly responded, the alteration of that was demanded, and likewise the substitution of a general title relative to the trial. and since no proofs of it resulted either from the prosecution or from the defences which the unfortunate wife (who was dismissed with the mere precaution of keeping her home as a prison) could have made, if she had not been so horribly murdered, and since the said decree, issued without her having been summoned or heard, would be void, the inscription made by the judge in the records as a title could not convict her of that crime; but only the truth of the fact resulting from the proofs should be considered. [citations.] i acknowledge that the accused should have been considered worthy of some excuse if he had slain his wife in the act of taking her in flight with the pretended lover; since for this purpose, not merely the absolute proof, but the mere suspicion of adultery committed, would be enough. [citation.] but when, after neglecting the pretended right of private vengeance, he sought out with entreaty public vengeance, by having her arrested, he could not thereafter, while she was under the public authority of the judge, take private vengeance by butchering her who had no fear of such a thing. the suspicion of a just grievance, which is difficult to restrain when aroused, excuses the husband in part, if not entirely, whenever he takes vengeance immediately under the headlong impetus of anger. but when the vengeance is after an interval, and while the cause is in the hands of the judge, and the victim is imprisoned at his own instance, this does not hold good, as will be proved further on, by showing the irrelevance of the principle assumed. nor does the glossa in the alleged text, in the law of emperor hadrian, stand in the way; because it speaks of a son taken by his father in flagrant adultery with his step-mother, and killed by the father immediately. [citation.] and there is a wide difference between a father and a husband killing after an interval; because, as farinacci adds, a father has the greatest authority over his son, and by ancient law could even kill him. and certainly the husband does not have this. the law also more readily excuses a father, because he is always supposed to take good counsel for his child, from the mere instinct of paternal love. but one does not have this same confidence as regards a husband, who is accustomed to conceive unjust suspicion of his wife more readily. hence it is not permitted that he kill her on mere suspicion after an interval. nor is he in any way to be excused on this account, according to the text. [citation.] "the devotion of a father's love usually takes good counsel for his own children, but the hot precipitancy of a furious husband should readily be restrained." [citation.] this is so far true that a father is not excused unless he kill, or at least severely wound, his daughter along with the adulterer; so that it should be attributed to fate, rather than to paternal indulgence, that she escape death. and this has been passed by law-makers for no other reason than that such a grievance, provoking to rash anger, is required for excusing a father, so that he may not spare his own daughter. but since this statute is not to be found among the laws about husbands, the manifest difference between the two, because of the husband's excessive readiness to seize a suspicion and fly into a rage against his wife, is plainly revealed. nor is mere suspicion a sufficient ground to diminish the penalty for a husband who kills his wife after an interval. this is evident from the very authorities excusing him in such a case, whenever the adultery is proved either by the confession of the wife or by other proofs, so that she can be said to be convicted of it. [citations.] bertazzolus says: "i have seen the matter so regarded in the contingency of such a fact, and the husband has been excused who had killed an adulterous wife, not found in the very act, but whose adultery was really and truly existent and was quite plainly proved." hence it is plain, from those very authorities adduced by his honour, that the husband who kills his wife after an interval is not excused because of mere suspicion, or because of an adultery case which is still pending judgment, and which he himself had brought. in law, also, is his assumption proved to be without foundation, which places on an equality [first] vengeance taken immediately, that is, in the very act of taking the wife in adultery, or in acts immediately preparatory, which lead him to such a legitimate belief; and [secondly] vengeance taken after an interval, even when the adultery is evident from such proofs as render it perfectly clear. there are many authorities who urge the diminution of the penalty for the following reason which they give--that the sense of injured honour always keeps urging and provoking to vengeance, and that a wife may be well enough said to be taken in adultery, when she has either confessed it or been convicted of it. and these authorities have been collected with a full hand by his honour, and i myself recently pointed out one of them. but the contrary opinion is the true one, and is accepted in practice. to this fact the most distinguished and most skilful practitioners of our time in criminal law bear witness. these are [first] farinacci, where, after he has first learnedly answered the reasons and authorities adduced to the contrary, he concludes that he undoubtedly believes so as to the law in the case, and counsels that it be so held, unless we wish to err; and [second] canon rainaldi, who also filled the office of procurator of the poor with the highest praise, and so it may well be believed that he was very strongly inclined toward mercy and commiseration, and that he therefore adhered to this opinion in the mere zeal for the truth. and he declared it to be the truer and the more advantageous to the state, and said that one should not depart from it in giving judgment. [citations.] but even if the conflict of authorities might in some manner favour the diminishing of the penalty for the accused, if there had been excess merely in the matter of time; yet he is still to be considered as inexcusable, so that he cannot escape the ordinary penalty, since so many qualifying circumstances are present which increase the crime; and any one of these is punishable with death. to this end we should first consider the assembling of armed men, which is so very injurious to the public peace, and constitutes the crime of "conventicle." in the banns, chapter , this is punishable with the death of its author. it is also declared that it is enough to establish this crime if four armed men are assembled. this had been formerly prohibited under the same penalty by the seventy-fifth constitution of sixtus v. of blessed memory, which had raised it to the crime of rebellion, for whatever reason it might be done. spada proves this fully, asserting that it should generally be so understood in all cases in which the assembling of men has been prohibited. to escape or evade this capital penalty, it is not a relevant excuse that a husband may kill an adulterous wife by armed men brought together. for, however it may be when a husband wishes to kill his wife taken in adultery, and is afraid that the armed adulterer can resist him, and that he may have servants for his aid (in which case he himself cannot take vengeance otherwise than by calling together helpers, as caballus advises), yet in the case of vengeance taken after an interval, and while the wife is under the power of the judge, and on the mere suspicion of adultery, such convocation of armed men cannot be said to be at all permissible. for the seventy-fifth constitution of sixtus v. of blessed memory, prohibits such assembling even on lawful occasion, as a disturbance of the public peace. [citation.] and so it is much more to be prohibited and much the rather to be expiated with the ordinary penalty both of the constitution and of the banns, since it was made for an illegal and damnable end, namely to kill his wife, and his father-in-law and mother-in-law along with her. this is rendered plain by the assertion of the very authorities who excuse from the ordinary penalty a husband who takes vengeance after an interval. and indeed the path of private vengeance, which is hateful to the law, would be strewn all too broadly if, after the husband had chosen legal vengeance and had neglected to avenge his pretended injury in the act of seizing his wife in flight with the pretended lover, he should be excusable in taking vengeance after an interval with all security, by means of armed men, and in killing her while entirely off her guard, and under the power of the judge, without the slightest risk to himself. this is true in spite of the response which might favour him, that he neglected to take private vengeance because he was unarmed, and the wife was found in the company of the canon, who was a bold, sturdy man. the husband should impute it to himself if alone and unarmed he was pursuing his wife, fleeing with the lover. for then he could take associates with better right, and fully armed could pursue her; and in such a case his assembling of men would be somewhat excusable. but this is not so when he takes such awful vengeance after an interval. for if we consider the reason why a husband killing an adulterer or his wife is punished with a milder penalty according to the quality of the persons, if the vengeance follow in the very act--namely, rash anger, which cannot be restrained--the assembling of armed men to do that after an interval is plainly revealed to be illegal. for rash anger would cause him to expose himself to the risk of resistance by the adulterer, who is not accustomed to approach unarmed. because of this risk the penalty is diminished, since it shows that the husband carelessly exposed himself thereto, because of the violence of the anger which blinded him. this is [not] the case in vengeance taken after an interval, taken with all forethought and by means of armed men, so that the husband cannot be afraid that any evil will befall himself in carrying it out. such preparation is quite repugnant to rash anger, which cannot be restrained, and from which excuse is drawn. [citation.] 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. giovanni battista bottini, _advocate of the fisc and of the apostolic chamber_. response _to the account of the fact, and grounds in the franceschini case._ [pamphlet .] the splendid statue of nebuchadnezzar fell because it was not firm on its feet. so fall to ground those imagined and forced suppositions concerning the origin of the present execrable murder, which the anonymous writer in his printed pages [pamphlet ] has tried to insinuate into the dull heads of the crowd. this murder was committed here in rome upon three wretched and innocent persons, by guido franceschini, assisted by four men who were armed with prohibited arms, who were brought together for that purpose by the influence of money, and who were kept insidiously for many days at his expense. [these pages claim that] the crime arose from justly conceived anger: [first] because eight months earlier guido had discovered francesca pompilia, his wife, sinning against him in his own house at arezzo, and [then] because she had fled in company with canon caponsacchi of the same city back to rome to place herself again under the protection of pietro and violante comparini, who had raised her as their daughter; and [thirdly] that the suspicion had also grown upon guido that in her precipitate journey she might have broken with the canon her marriage obligations, since certain love-letters were found upon her, from which he unreasonably deduced her adultery, and he supposed that the said caponsacchi was condemned as an adulterer to a three years' banishment at civita vecchia. and these pages try, under the pretence of injured honour, to render guido's crime less grave and to excite compassion, no less in foolish persons than in the hearts of our most religious judges, for the purpose of disposing them toward a milder penalty and one out of keeping, according to the laws, with the quality, form, and circumstances of this crime. and this in substance is all that is claimed by the author of the pamphlet entitled _notizie di fatto, e di ragione nella causa franceschini_. but they are indeed very much at fault in their account of that tragic history, which had a different beginning and an occasion independent of the imagined ground of honour. in that pamphlet it was presupposed all too bitterly, that guido's honour had been injured by his wife; whereas she always preserved her sense of shame and had well observed the laws of conjugal honour, as is plainly shown in this present article. that this sad catastrophe, this slaughter of an entire family, did not proceed (as the anonymous author claims in his pages) from the pretended sense of injured honour, but from damnable greed, one can very clearly see by considering the fact that for this very object the unfortunate marriage with francesca pompilia was entered into by franceschini. for it was taken for granted that after the death of her supposed parents she would surely fall heir to a considerable property. all the more ought we believe that the crime was committed because of hatred arising from the three lawsuits then pending; that is, two in the civil courts and a third in the criminal courts. one of these was as to the legitimacy of the parentage of francesca pompilia, the wife, and the nullification of the dowry-agreement, and was brought by pietro in the tribunal of the sacred rota. the second suit was for divorce, and was brought by the said francesca pompilia before the vice-governor. the third is a criminal suit, as to the pretended adultery, which is still pending in the tribunal of his excellency the governor; this latter was brought under the very impulse of greed, to gain the entire dowry. since this fact was conclusively evident in the case introduced by the said franceschini, he was deceived in this hope of gain by the failure of the proofs, which the defence caused to vanish utterly, as they could do by means of the wife. hence he broke into an excess so tragic and so deplorable as to reveal clearly the tricks and frauds practised for the purpose of bringing about that marriage. here then are the plain proofs that this is the truth. guido franceschini was staying at rome in idleness, out of the service of a certain cardinal, without a soldo, by which service he had provided for himself up to that time. his usual loafing-place was in the shop of certain women-hairdressers, where he often announced his intention of setting up his house with some good dowry. he also boasted of the grandeur of his country, his birth, and his property. by his promises he induced this woman to find him a chance for such a marriage, and she informed him of the opportunity in the said francesca pompilia. the latter was then esteemed to be the true and legitimate daughter of pietro and violante comparini. he set about this enterprise with the aid of his brother, abate paolo, using the astute prudence with which the malign serpent advanced his designs in paradise to subvert adam into disobeying god's precept and into eating the forbidden fruit; for [satan] considered the matter in this way: "if i wish to assault the man directly, who is so strong and so resolute, he will turn and give me a sure repulse. it is therefore better that i first tempt the woman, who is of a fickle nature and soft-hearted." and he made his first attack upon eve; because when he had gained his point that he might have her, by her means it would be easier for him to win over adam. "for he first attacked the mind of the weaker sex," are the ingenious words of st. hilary. and so for this purpose did the said guido devise the marriage with the knowledge of his brother, abate paolo, and likewise to this point he succeeded in it. for he avoided talking with signor pietro about the marriage, by whom it would probably have been refused, and wished first to tempt violante, his wife. because by gaining her he would the more easily overpersuade her husband to give his consent. nor was it difficult for him to astound the woman, because he knew how to impress her very well with the thought of the grandeur of his country, of the first-rate nobility of his birth, and of the great income from his patrimony, amounting to scudi. and he gave her an itemised account of it written with his own hand. she was enchanted thereby and, without getting any further information about the matter, she was able to persuade her husband and to extract from him his consent to it. this proves what we read written in proverbs: "a wife takes captive the soul of her husband." he speaks this of mordecai who availed himself of esther, when he wished to placate the anger of ahasuerus against his people; of joab, who used the services of the woman of tekoah when he wished to soften the anger of david against his son; and of the philistines of timnath, when they wished to gain from samson the secret of the riddle proposed to them at the marriage feast. the credulous but deceived woman so cajoled her husband that she at last induced him to sign the marriage agreement providing for a dowry of bonds and, at the death of the said comparini, for all their possession, amounting, as the anonymous writer acknowledges, to the sum of , scudi. and, for the purpose of making the said franceschini guardians of the said property even during the life of the comparini, they had to give up even the income of it. this property consisted of numbers of profitable and well-situated houses, and of bonds. the franceschini also assumed the obligation to take the said comparini to the city of arezzo, and there to feed, clothe, and provide them such service as they would need. this promise was made not without the hope that on account of the insults and sufferings which they would have to bear their death would be hastened. and thus guido would become the absolute master of their property. after having signed the said agreement pietro absolutely refused to go on with the effectuation of the marriage of the said francesca pompilia, with the abovesaid guido, of whom he had had few good reports; and these were far different from the pretended riches and vaunted nobility. hence one may well say of him what persius concludes in his fourth satire: "see what has no real existence; let the rabble carry off their presents elsewhere. dwell with yourself, and you will know how meagre your furnishing may be." at any rate, the said guido joined the said violante, whom he had imbued with his flatteries and endearments, spurning any further consent of pietro by keeping him in ignorance of it. and without the knowledge of the latter, guido contracted the marriage with the said francesca pompilia in the face of the church. and he evermore discloses by this act, which shows so little reverence to the promiser of the dowry, his own greed, not merely for the amount which had been assigned to him in the marriage agreement, but also for the rest of pietro's property. for he felt sure that after pietro's death the property, by the entail of the ancestors, would necessarily fall to the said francesca pompilia, who was already his wife. when, after a few days, pietro found out that the marriage had taken place, though he reproved the deed vigorously, yet because what is done cannot be undone, and by means of the cajoleries of violante his wife, and the interposition of another cardinal, whom the abate, guido's brother, served, the poor old fellow was constrained to drink the cup of his bitterness. and he came, as it were by force, after many months to the stipulations of the dowry agreement. he quickly began to feel the effects of franceschini's trick, since guido had scarcely a single soldo of his own to pay the first expenses of that marriage agreement. hence, to supply these, he was obliged, against the wish of pietro, to free from entail five of the bonds, or more, by the authority of the auditor of the most illustrious governor, and to sell them for meeting these expenses. hence one may see clearly that the primary object of franceschini in this proceeding was to trick pietro, and violante his wife, and their poor child, to enrich himself with the property of others. he can no longer deny the fraudulent pretence of vaunted riches of the franceschini in the note written in his own hand and given to the comparini. and indeed the anonymous writer confesses it openly. for, in order to free abate paolo from complicity in that trick, the latter pretended that he took guido his brother to task roundly for the alteration of the said note. the said comparini very quickly found this out. for as soon as they had gone to arezzo they learned that the property of the franceschini family was very slight. and such were the miseries and abuses that the comparini had to suffer in victuals and in harsh treatment that they were obliged to return to rome after a few months; for they were locked out of the home and had to go to the tavern to lodge; and these abuses were for the purpose of shortening their lives, either by their sufferings, or the fury caused thereby. and this fact is very evidently proved by the rent-rolls taken from the public records of the city of arezzo. from these it is shown that the said guido did not possess a single dollar's worth of the settled property mentioned in the said note. it is also untrue that he and his family enjoyed the highest rank of nobility in the city, because, from other extracts drawn from the public records of the city, it is evident that his family is of only secondary rank. the abovesaid crafty and fraudulent methods of dealing, which came to light long before the murder had followed, and which became known in this court and in arezzo, can well show that greed was the origin of this premeditated slaughter (which was put in execution in such a horrible manner, as is notorious) and not the pretended ground of injured honour. for, according to common opinion, abate paolo, no less than guido his brother, had worked the tricks exposed as above. and by men they were suspected of subterfuge and craft, so that this made them more sensible of injury than anything else. hence they could no longer boast the grandeur of their nobility and the affluence of their riches, which they had spread abroad on the lips of the crowd. and every one avoided having anything to do with them, as persons of bad faith and as usurping a glory to which they had no real right. the greediness of this self-interest became greatly inflamed; so that in these franceschini brethren one may see the common axiom verified: "craft is deluded by craft." that is to say, violante was urged on by remorse of conscience and by the abuses and injuries received in their house, and was constrained by her confessor at the time of the jubilee to reveal to pietro, her husband, that the said francesca pompilia was not their daughter, but was of a false birth. and this seems very probable in view of the age of , which violante had reached, when she pretended to be pregnant with her; because in the fourteen years, during which she had lived in lawful matrimony with pietro, she had never had children. also, by witnesses then living, she could afford conclusive proof of the pretence of the birth. and when notice of that had been given to abate paolo, that he might come to some compromise over the annulling of the dowry contract for the entire patrimonial property, he spurned the kind offers made to him through the meditation of friendly persons and refused every means of peace. then a warning (as to the falsity of the said birth and the illegality of the dowry contract) was served on him by pietro before monsignor tomati. and conclusive proof of the birth was given by six witnesses, who were examined before the judge with questions offered in behalf of the said franceschini. yet the same judge saw best to forward the case during the mere immediate possession, by continuing to the said francesca pompilia the quasi-possession of her parenthood. nevertheless, an appeal was taken from his sentence, and it was committed to the sacred rota, before monsignor molines, where it still hangs undecided as to the principal point of the pretended parentage and the nullity of the dowry contract. for righteous judgment in such a tribunal the judge doubtless awaited for conclusive proofs of the said pretence of birth. the nullity of the dowry contract would none the less be decided, because it had made declaration that the said francesca pompilia was their daughter. and with this falsehood the advantage which the franceschini had obtained for their own selfish gain by such tricks would cease. all this is proved by the reflection that the trick of franceschini was made public, not merely in rome, but in arezzo, and that he also was deluded by a similar artifice because of the proofs already made, while judgment was pending, that the said francesca pompilia was not the real and legitimate daughter of the said comparini. on the ground of these far-fetched suspicions guido made pretence of a reason for maltreating her with insults and blows, and more than once he provided himself with a sword and fire-arms to take her life. he did this to take vengeance upon her for his own trick, by which he had been deluded. therefore it was quite right for the poor wife, who was of the tender age of sixteen years and a stranger in the place, to avoid the rage of her husband at different times by fleeing for protection to monsignor the bishop, and to the governor, or commissioner of the city, that they might put some check upon the cruelties she was suffering. and although these persons by their interest in the matter succeeded for the time in putting a stop to the threats, yet the poor intimidated wife always passed her days shut in a room. and her fear was greatly increased because she saw that the said guido had made a mixture of poison, with which he threatened he would take her life without the uproar attendant on the use of arms; and thus he would be the surer of his crime going unpunished. now if, even at a time when no shadow of suspicion of dishonour had fallen, the husband was contriving the death of his wife, the anonymous writer might well abstain from soiling his pages for the purpose of proving that the slaughter of those murdered had had its origin in the impulse to repair offended honour. for his pages would have had much better foundation if he had consulted the truth, namely that these crimes had arisen from deluded self-interest. the poor wife in her agitation over these difficulties that we have told, had nothing else to do but think of finding refuge from the death she feared. and when her mind was somewhat sharpened by its vexations, she intrusted herself to the canon conti, who is closely related to the franceschini, and declared to him her miseries, her perils, and her just fears (although they were not unknown to him), in order that he might try to give her consolation by placing her life in safety. he was touched with living compassion and was moved to free her therefrom by pity for the grievous state in which she was. and he well knew that there was no other escape than flight from the home of her husband, according to the saying of the poet [virg. a. iii. ]: "alas, flee the cruel earth, flee the greedy shore." but not being able to give her aid in this affair, he suggested to her that for putting the matter into execution, there was no better person to the purpose than canon giuseppe caponsacchi, his friend and intimate, whose spirit had stood every test. and when conti had spoken of it to him, although caponsacchi saw difficulty in aiding the desire of the young woman, because he did not wish to incur the anger of the franceschini, yet at last the impulse of charity and pity prevailed upon him to free this innocent woman from death. and when his readiness for the attempt was reported to her by conti, she did not fail to inflame him with more messages and letters, even containing alluring endearments, for the effecting of her escape. yet she also kept during all this time her constant desire of not violating her marriage-vow, since in some of these letters she praises the canon for his chastity, and in others reproves him for having sent her some rather improper octaves. she also warned him against degenerating from the good behaviour, on which she had congratulated herself and had planned with him the flight. while her husband and the whole household were asleep, both of them, with the assistance of the canon conti, set out upon a headlong journey by post, without losing a moment's time, except for changing horses; and they arrived by night at castelnuovo. and although the host had prepared a bed for rest, nevertheless they did not avail themselves of it. for caponsacchi was always solicitously watching to see that the driver prepared other horses, to continue the journey to its end. nor did the host of that tavern, when cross-examined in the prosecution for flight, ever dream of bearing witness that the wife and caponsacchi had slept together in the bed that was prepared, even though franceschini, to his own dishonour, had published the contrary, that he might, by the pretence of injured honour, throw a false light upon the true grounds of the murders committed by him. in the meantime her husband arrived. when his wife saw him, did she, timid as she was, shrink back? did she acknowledge herself guilty of any sin, or of any wrong done to him in guarding her purity and modesty? no! but all on fire, though she was at the tender age of sixteen years, as i have already said, the constancy of her own honour rebuked him for the tricks and abuses which he had employed, and for the threats and blows he had very often given her, and for the poisonous drugs he had prepared to take her life. and [she declared] that she had been obliged to do as she had done, to find an escape by flight from graver peril, and to return to the parental love of the comparini, who had raised her as their daughter; and that she had always been careful to keep her wifely honour intact. the same rebuke was made by caponsacchi, who during the flight had religiously observed the limits of due modesty. what did franceschini answer? what did he try to do, although he was armed with a sword against his defenceless wife and against caponsacchi, who had with him only a little dagger? nothing, indeed! according to what the witnesses who were present deposed; because he stood convicted by the just remonstrances of his wife. but what did he do? he gave up all vengeance, which by right of natural law, or much more by civil law, he might have taken for that; and, as the anonymous writer goes on to boast in justifying him for this execrable crime, he implored the arm of the law and had his wife and caponsacchi arrested by the authorities of the place. and at his own instance they were conducted as prisoners to the prisons of the most illustrious governor of rome, before whom guido charged them with flight. then, not content with this, he brought forward that other charge of supposed adultery committed with the said caponsacchi. he also outdid himself greatly by making noisy petition to the supreme pontiff for their punishment, and the latter sent back his entreaties to monsignor the governor. he was brazen enough to demand, with a new complaint, that his wife should be declared an adulteress and that to him, according to law, should pass all the gain of the dowry. this in substance clearly proves that he did not insist on vengeance for the reparation of his honour, which he himself had passed by, but he did all this for the sole object of gain, that is to win the dowry. what efforts, what exclamations, what diligence did franceschini and abate paolo, his brother, not use to have the wife declared an adulteress and to gain the desired lucre? monsignor the most illustrious governor knows it, who endured with all forbearance their passionate pressure upon him. signor venturini, judge in the case, knows it. and all the other judges and notaries of the court, who were nauseated by their importunity, know this very well. then since judgment could not in any event fall according to the designs of the franceschini, as there was no proof in the trial of any offence, either in the wife or in the said caponsacchi, the most religious judges, who in prudence were judging rigorously (for the purpose of giving some satisfaction to the franceschini brothers in their strong insistence, rather than because of the obligations of justice), banished the said caponsacchi to civita vecchia for three years. caponsacchi straightway obeyed this sentence, and has never left the place assigned him. the case was left undecided as regards the wife, who was placed in the nunnery of the scalette as a prison. then when there was some question as to her pregnancy, with equal prudence, she was removed from the nunnery by the order of the most illustrious governor; for it was not decorous that she should give birth to a child there. and with the consent of the said abate paolo she was placed in the home of the said comparini under security of scudi to keep it as a secure prison. on this point the anonymous writer disputes too bitterly what was written learnedly by the fisc, and claims that the consent of the said abate paolo had not been given. but the great and incorruptible integrity of the fisc is known to every one; because of which he would be unwilling to give his word in writing for what was not evident on the surest proof. yet the fact of abate paolo's consent is plainly proved, since he in person so agreed with monsignor the most illustrious governor and with signor venturini, the judge, jointly. and he exacted from pietro comparini the obligation to supply her with food without any hope of recompense. and this was so carried out, although the quality of the comparini did not deserve so indecent a rebuke on account of having been too indulgent with them. with like bitterness it is denied that the said abate paolo had power of attorney from guido, his brother, enough to give such consent; because, in making such a provision, monsignor the governor had no need of the consent of the parties. and, even if he had wished to show abate paolo such courtesy and urbanity, the author should not reply thereto with such incivility, in criticising the judge for having done wrong because of the lack of that power of attorney. for by such procedure [abate paolo] proves that he wished to trick also monsignor the governor into consenting to a thing beyond his power. and he rests convicted of this, because the said abate paolo was the manipulator of all they did, nor was a straw moved without his assistance. and he was well provided with abundant power of attorney by his brother, wherefrom he had the fullest authority to do as if he were the very person of his brother, with a proviso of after confirmation, the efficacy of which every one knows. and this is confessed even by the anonymous author, since he asserts that guido at his departure left the entire conduct of his case to the abate, his brother. but one may well see with what object he denies the said consent, that is, in order that he may more bitterly make pretence of the complicity of the comparini in the pretended dishonesty of francesca, who had been guarded by them as a daughter. this would seem very improbable if he should once admit the consent of the abate. no less rancorous is the assertion made by the anonymous writer that lamparelli laid out the money to provide pompilia with food while she was in safekeeping. nor was lamparelli reimbursed by the deposit in the office, which had come from the money found on her and on caponsacchi, when they were arrested at castelnuovo, which was supposed to have been stolen from the husband. but the scudi, which the wife confessed to have taken away from him, were fully restored to the said abate paolo, as is proved by his receipt, made during the trial. the rest of the money was conclusively proved to belong to caponsacchi. and as soon as abate paolo received the money, for which he continually clamoured, he left rome to take part in the planning of that notorious murder, which followed a little while later. but there had previously been given notice, at the instance of francesca pompilia before monsignor the vice-governor, of a suit for divorce and for the recovery of the dowry, which had been spent. this was very bitter to the franceschini, because in that lawsuit conclusive proof would be made of their subterfuges, their cruelties, their threats of poisonous drugs that had been prepared; of which the canon conti, who was the mediator in that flight, had not been ignorant. and it is public talk and report throughout arezzo that he died about a month ago under similar suspicious circumstances. hereby ceased all hope, which the franceschini had had from the beginning, of gaining the entire property of the comparini. and from this, every sane mind may see and know what is the true root of such rash and pitiable murders; whether it is injured honour, or scandalous and detestable greed and cupidity. from this arose the hatred in the lawsuits brought and still undecided, which drew even greater dishonour upon the said franceschini, and when decided would be for their ruin. in vain therefore this anonymous writer and his other defenders wear themselves out in exaggerating the plea of injured honour. for then that which had no true existence would have been taken from guido by his wife. this was fully proved in the arguments made for the fisc, in answering those letters, from which guido drew his strongest proof. on the contrary, franceschini has by his own deed renounced all right to repair his honour, since he did not avenge it at the time of overtaking her in the said inn of castelnuovo. nor does his excuse really help him--that he was unarmed, because he had with him indeed a sword, and possibly other concealed arms. for it is not probable that he would have been willing to go on following his wife accompanied by caponsacchi, without being provided with arms. and this all the more because the fugitives also were unarmed and were provided merely with a little dagger. but guido preferred to choose the judicial road and had them arrested by the police, and he demanded that the charge against them be pushed through to their punishment, even imploring the rescript of the supreme pontiff. he also laid his entreaties again before the judges in the case (this very well discloses his purpose, which was the unconquerable motive of all his acts) and made special insistence before them for the payment of the price of the honour, which he pretended had been taken from him. and would he not even have had his wife declared an adulteress for the sake of gaining the dowry? if then he has, as one may say, demanded the price of his honour in the courts, how can he be permitted to commit such awful murders for honour's sake? for whenever a husband is permitted by reason of natural law, or even by the civil law, to kill his wife for honour's sake, this power and faculty ceases whenever the husband has renounced it by imploring, as above, the arm of the law. and these complaints that he made, and his recourse to the pope, show the price he put upon his honour. and with these judicial proceedings he lost, without doubt, his right of private vengeance for his injured honour, which he might have carried out. and by this one tacit renunciation, this right is extinct. [citation.] for the writer cannot claim that the judicial action brought by franceschini would not effect the renunciation of private vengeance for his honour, but that he could still employ the one or the other, and avail himself of whichever might seem better to him. for this is contrary to the text [citation] which is stated as follows by the celebrated canonist, giovanni andrea: "a choice cannot gain both alternatives in seeking confirmation therefrom; even if the one is claimed to include that by which the man can attain the end of his intention. therefore a man must choose one, and when it is chosen he cannot turn to the other." and still clearer are the following words of the same authority: "the right to return to a second alternative shall not at all be allowed, when one seems to have renounced to choose the first and to profess that his rights cannot arise therefrom." but although this exception from every miscarried law might be judged permissible, every foundation of it would be destroyed by the utter lack of proof of an offence received in his honour; for there was no proof of it in the prosecution for flight. the anonymous writer strives to deduce that from the pretended love-letters written to caponsacchi, which were denied by francesca and were not proved to be her handwriting, either by her own acknowledgment or by her signature. one cannot claim that she was convicted of it, nor that any legitimate proof of it resulted, as all judicial practice shows. and even if without reason we were obliged to acknowledge that they were written by her, would it not be too bitter and too unreasonable an inference that from them arose the husband's motive for killing her because she had written them? no one of sound mind will be persuaded to pity the husband who has gone on to kill his wife for the sole reason that she had written love-letters. for conjugal honour is offended neither by note, nor by pen, but only by acts of impure dishonour; and of this, in our case, every shadow of proof is lacking. this is all the more true because the mere suspicion of dishonour ceases with a thought of the true motive, for which the letters were written; namely, by pretended demonstration of affection to allure this caponsacchi to rescue her from imminent peril of death. nor from this could she find any other escape than by flight; for she was always terrorised by the anger and hatred conceived by her husband for feigned reasons. and therefore, as the love-letters arose from that occasion they ought to be referred to it, and not to a dishonourable wish to smirch her conjugal faith to her husband. to the same cause, likewise, should certain conversations be referred, which she had had from the window with the said caponsacchi in order to arrange the manner of saving her life, and not to give offence, nor to hazard her own modesty, nor the honour of her husband. even the most chaste of women have used like artifices. we find in the sacred scriptures that judith entrapped holofernes in the same way, for the purpose of winning the liberty of her native land. and so it may be no less permissible for this poor woman, who was solely intent upon the security of her life, to allure caponsacchi by amatory letters to be a safe companion for her in her flight, and this without any stigma of immodesty. much less can an offence of his honour be inferred from the flight; because, as i noted above, this flight resulted from the cause declared. and one may see clearly that it was not for doing any injury to her husband. for the fugitives did not turn aside into unknown places, but they journeyed precipitately along the consular road by post, without spending the night anywhere. and their journey was toward rome, where the poor wife hoped that the comparini, who had raised her as their daughter, would continue toward her those acts of love with which they had brought her up, even till the said marriage was contracted with franceschini. and all that is being reported that a driver testifies he had seen them kissing along the road has no legal foundation. for it rests merely on the word of a single witness of the lowest class, and he swears to matters that are quite improbable, because he had to drive the carriage with such rapidity as that with which the fugitives were following their journey. hence it was almost impossible for him to look backward, or to see what they were doing inside of that covered carriage. and this is all the more so because his deposition is vague, nor does it specify whether the kisses were given at night or by day. but his deposition is rendered much more doubtful and improbable because, in such a swift journey as the carriage was making, it might chance during the jolting of it that the accident of their faces meeting casually would arise, and to him this might seem the act of kissing. this happens very commonly, even when one is making no such journey, according to the quality of the road and the rough ways which one finds. this makes his testimony insufficient and doubtful enough or, even further, it is audacious and incredible. then as to the other point which the anonymous writer asserts too bitterly, namely, that when they arrived at castelnuovo the innkeeper was ordered to make up only one bed for the repose of the fugitives, and that they slept together. the host however did not have the hardihood to swear, in his cross-examination, that they had slept together in it. this circumstance is excluded by the deposition of the wife as well as by that of caponsacchi. because their affidavits constantly affirm that neither of them went to bed for rest, but that merely the wife, who was worn out by the discomfort and suffering of so precipitate a journey, rested for a few hours seated in a chair; and that the bed was left arranged as the host had adjusted it; and it would have been found mussed, if they had slept in it. it is also proved that when franceschini arrived at the said place he found caponsacchi urging that the horses be harnessed for continuing the journey, and no proof is given to the contrary. nor can one justly pity franceschini for his injured honour, which had been kept intact by the fugitives. likewise the title, to which the same writer appeals--that the decree of condemnation for caponsacchi's banishment had been inflicted because of criminal knowledge, to the injury of guido's honour--has no real foundation; because this title was corrected as untrue, and not in accord with the proofs. of this fact we may have as legitimate witnesses the very governor himself, and all the judges and notaries of the tribunal who have any part in the criminal court. and if one will only give it due thought, the title of that case was placed there, just as a wine bush hangs outside the door of an inn, which very well shows that they sell wine there, but does not prove whether what they sell is good, and saleable, and agreeable. oh! by no means. for one may find the wine there to be sharp, and muddy, and of other inferior qualities. if therefore we read the documents and the proofs registered during the prosecution, by which the crime is proved, and not by the erroneous title, which cannot offer a shadow of proof for the pretended criminal commerce, there is even less suspicion of immodesty. and one can well understand that all proof was lacking during the prosecution from the mildness of the penalty inflicted, which does not at all correspond with the gravity of the crime charged. one can also see the impropriety of condemning caponsacchi as an adulterer while the cause against the wife was still pending; because she could not be condemned while undefended. but to remove every suspicion of this pretended adultery, i beg any dispassionate reader to reflect that the adultery could not have been committed in arezzo, because to the guardianship of her husband was added that of the brothers, of their common mother, of the servant, of the relatives, and of the neighbours; yea, the voluntary imprisonment of the unfortunate child, who was always shut in a small room to guard her honour. much less could adultery have been committed during the journey, as has been proved to be utterly unlikely, improbable, unproved, and far from the truth. nor could it have been committed at rome; for it is well known that pompilia was taken from castelnuovo to prison, and from there was removed to the nunnery of the scalette, and then because of her pregnancy was consigned to the said comparini, under the form of keeping their house as a prison with security of scudi. caponsacchi also was staying then at his place of banishment in civita vecchia. in this fact all suspicion ceases, since the consent of abate franceschini, who is so zealous for his brother's honour, as well as his own, concurred therein. nor can one restrain himself without strong exertion when he hears such exaggeration from the anonymous writer as that caponsacchi left his prison to go in banishment to civita vecchia at a time when the wife was staying in the house of the said couple, as a prison, and that he lodged in their house. but he cannot speak a more barefaced lie than that, because caponsacchi has never been their guest, and as soon as he left the prison he went to the place of his exile; and he has faithfully observed his banishment without ever returning to rome. nor did the wife leave the nunnery before it was proved to monsignor the governor that caponsacchi was staying in civita vecchia, as was established by the authentic testimony of the chancellor of that district. the said writer, however, gives me even more room to blame his excessive boldness in stigmatising the honour of franceschini as sullied by his wife, by saying that as soon as guido had ascended the stairs in company with his fellows, armed to commit this execrable murder, he looked about upon those walls, which were all full of his insults, as if the said silent stones had known how to make contrivances of foolish thoughts to foment his inhumanity for so horrible a murder. because for this he can give no other proof than that he was writing fancifully without any foundation. for guido was indeed willingly dishonoured; because to his other dishonours he added these disgraces also, even by his own wrongdoing. for it is made very clear above that the cause for which he committed the crime was not to repair his honour, which had been injured by his wife. but it was his unmasked tricks, the hoped-for lucre, which had vanished, and the lawsuits still pending. and why can he not bring some other no less convincing proof, if honour urged franceschini thereto? and was not that honour sufficiently avenged by the death of his wife? why imbrue himself straightway with the blood of violante and pietro, who were not accomplices in the pretended dishonour? and why should he lay such plots through many days to procure the death of that kindly benefactor, because the latter had been moved by pity and had ministered to their aid in the said lawsuits? upon that one there has never fallen a suspicion prejudicial to guido's honour. for while the wife was in arezzo he was staying at rome. and when she was first married she was not fully thirteen years old, and after her flight, when she had returned to rome, we know that she continued under guard in prison, or in the nunnery, and then in the home of her parents, and at this time she was very near her confinement. hence one can conclude truly that the motive of this murder was other than that of honour, and that it was his greed, as was said, and the lawsuits, as franceschini himself confesses in his cross-examination. nor ought the declaration made by the said wife in the face of death be despised, since in the presence of many priests and persons who are quite trustworthy, even while she was constantly suffering from such severe wounds, she maintained and professed with greatest frankness that she had always lived chaste and faithful to her husband. and with a heart in fullest resignation to the divine mercy, she prayed pardon for every mistake she had committed to the disgrace of her husband. nor in such a matter is it to be presumed that the one dying lies, at the risk of the eternal safety of her soul. a person should also reflect that in this deed there occurs a special favour from the hand of the very omnipotent, who caused the wife to survive for a few days, in order that she might make clear her own innocence and throw light upon the murderers; for without this the crimes would have gone unpunished. for during the same crime franceschini had repeatedly commanded his companions to see if she were quite dead. and when they had taken her by the tresses and had lifted her from the ground where she lay, they believed she was dead; because the poor wife, by natural instinct, knew how to feign it by her relaxation, as the delinquents confessed. and this mark of divine favour all the more verifies the declaration of the wife, which has been proved by the confession of those guilty of the crime. i have left it for the last to discuss and refute what the said writer pretends concerning abate paolo. but if he had to speak the truth, he might reasonably affirm that the abate had been the whole foundation of this scandal. for he had urged guido on to the murders, and he had woven the whole plot, inasmuch as it was he who, from the beginning, wished to attain, by dint of industry and trickiness, the marriage of the said francesca pompilia. it was he who had sustained the suits, both civil and criminal, and he who, under the name of a grandee, and by boasting of their word of honour, had tried to extort a judgment by means of fine insinuations, by subterfuge, and by trickery; which was not right. it was he, who was very sensible of having been proved to be the man of guile, who had been deluded by his own trick. therefore this writer had good reason to say that the faces of others served the abate as mirrors by which to read his own evil courses, and not the lost honour of his brother. i forbear to respond to what the anonymous writer has tried to have believed to the praise of abate paolo franceschini, to excite greatly our pity; since the intention of the author of the present response is no other than to make clear the falsity of the suppositions against the honour of the poor wife and against the comparini, and to serve the cause of justice. and he leaves the judgment of it to those who have full knowledge of it. from the same consideration i pass over responding to many another impropriety, which has been advanced uselessly and without any point by the said writer. and i close my response with the example of samson, alleged by him. when he saw himself exposed to the public scoffs of the people, he gave a shove to the pillars of the palace, causing it to fall that he might die with the rest under its ruins, and might cease to be longer the scorn of that people. so lest the said franceschini may be ridiculed for his tricks, it is fitting that he and his companions pay the penalty merited by their crime. for these are pernicious to the state and to that peace and security which litigants in the courts of rome ought to enjoy, if we would maintain what the vigilance of the supreme pontiff alexander vii., and his successors, has provided. for they have published a constitution as to that, and with it banns, successively promulgated. the sacred order of such laws should be observed all the more willingly, inasmuch as guido had chosen the judicial way to vengeance, and the appeals made to the supreme pontiff, who is most eager to do what is just, were sent back to his judges. nor could guido grieve for this without some pretended injury, as is evident; hence the anonymous writer wished to ascribe it to the aggravation by which the anger of franceschini had been exasperated. this clearly shows with what intent he had broken into such detestable excesses. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor of the city in criminal cases_: _roman murder-case._ _for count guido franceschini and his associates, prisoners, against the fisc._ _reply as to law, by the honourable advocate of the poor._ _at rome, in the type of the reverend apostolic chamber, ._ romana homicidiorum [pamphlet .] most illustrious and most reverend lord: i omit further discussion with my lord advocate of the fisc about the communication of his allegations, because the time is brief, and i have professed great reverence for him since my youth. let me also pass over the claim that when one is arguing about death inflicted by a husband upon his wife, not in the act of taking her in adultery, but after an interval, mere suspicion, however strong, is not sufficient to redeem him from the ordinary penalty of the cornelian law, but that the clearest proof of the adultery is required, as is claimed by our opponents. yet we have proved the contrary in our former argument, § _quamquam ad hoc_. and dondeus, sanfelicius, and muta, who were not cited there, hold that it is quite enough if the couple be found alone in some retreat; and no. says especially if the wife be beautiful. [citation.] see the word of ovid: "great is the strife of modesty with beauty, and man keeps eagerly craving it." [_heroides_, paris to helen.] so in the present case, according to the same author: "by this young and passionate man is she supposed to have been returned still a virgin?" [_heroides_, , .] at present, we are dealing with a case not merely of clearest proof, but also of notorious fact; because we have a decree of this very tribunal by which such adultery was declared. although the words of this decree have been given in the present information, § _absque eo quod_, yet i wish to repeat them here, because they are so clear: "giuseppe maria caponsacchi, of arezzo, for complicity in the flight of francesca comparini, and for criminal knowledge of the same, is banished for three years to civita vecchia." but i cannot pass over what is still claimed--that this decree was revoked--because, as i have said in my information, the truth is quite the contrary; for we have only the fact that in the mandate for imprisoning the sinning canon the repetition of the whole decree, as given above, was omitted, and it was said: "for the cause, concerning which in the suit." these words are so far from showing a revocation that they rather offer confirmation of the said decree, as we have affirmed in our information, § _nec verum est_. the same should be said of the like words furnished by the notary in the bond which francesca pompilia executed to keep the home of her father as a prison. this was when she was brought there from the nunnery, where she had been staying securely, on the grounds of her supposed infirmity, but i may say more truly that it was because of her pregnancy, which she wished to hide by some evil deed. [our claim is all the more true] because this pretended revocation of the decree could not be made when the other side had not been heard, as i have said in my information, § _eoque magis_. likewise i cannot pass over what is said as to the canon having been condemned only to the penalty of banishment because of defect of proof of adultery. for if such proof had not existed, how could my lords judges express in the decree that they condemned him for criminal knowledge of the same francesca pompilia? it is the truth that the judges held that the said adultery was most conclusively proved, and that the said canon was convicted of the same, since in the prosecution nothing is wanting but the taking of them in the foul act; and this is not necessary to prove adultery. [citations.] the penalty to which the said canon was condemned did not indeed correspond with the said crime. as to this many replies may be made, but, because this has no connection with count guido let it also pass by. for however that may be, who can deny that count guido, on reading the said decree, which needed no comment, ought justly to be angered for the conjugal faith violated toward himself? and who can deny that he ought to be somewhat excused, if afterwards he took vengeance for such a violation? [citations.] and this is true, although he took such vengeance after an interval, as was plainly demonstrated in my said past information, § _nec verum est_. for there are few authorities who hold the contrary, and therefore it would be almost heretical to doubt the truth of such an opinion. [citation.] especially since this has been accepted in almost all the tribunals in the world, particularly in that of the sacred council, which establishes the precedent for all the other tribunals of the city and of the entire ecclesiastical state. hence concioli affirms that it is almost like sacrilege to depart from this opinion. [citation.] and is it not a fine pretence to wish to exclude the plainest proofs of adultery by the word of the very wife convicted of it, and then retained in the nunnery by reason of it, as my honourable lord procurator general of the fisc has ingenuously acknowledged? for a person is not obliged to disclose his own baseness in the face of death, as we have proved in the said present information, § _et quatenus_, and the § following. and since she had lived badly, not to say in utter baseness, to the injury of the honour and reputation of her husband, we inflict no injury on her by wishing to presume that even in death she did not come to her right mind, according to the saying: "he who lives badly dies badly." and no one, even in death, is presumed to be a saint john the baptist, as in my information, § _nec valet dici_. as therefore it remains firmly established that count guido had just cause for killing, or causing to be killed, francesca pompilia, his wife, the same must be said as to the murder of pietro and violante, the father-in-law and mother-in-law. for in the prosecution of the said francesca pompilia for flight from her husband, proof also came to light that they had conspired in that same crime, and consequently were among the causes of the injured honour and reputation of count guido. and this injury to his honour had also resulted from what they had pretended and had exposed before every one--that his wife was not their daughter, nor legitimately born, but was the daughter of a harlot. and afterward they had received her into their home when she had been declared an adulteress. for either she was their daughter, and they ought not to deny it in court, or else she was not their daughter, and they should not receive her into their home after she had been convicted of adultery. for in doing so they had, by that very act, declared that they had been and wished to be her panderers. [citations.] the confession of count guido cannot be divided from its qualification, that he had demanded the murders for honour's sake. but it ought to be accepted by the fisc along with the said qualification, as we have proved in our information, § _huiusmodi enim confessio_. the authorities alleged to the contrary by my lord advocate of the fisc hold good in a qualification, extraneous to the confession itself and which is not therefore proved otherwise, and when there is argument for some extraordinary penalty, and we have admitted this in our information, § _præsertim_. but just as the plea of injured honour relieves count guido from the ordinary penalty for murder, so should he be excused from certain other ordinary penalties, laid in the banns and apostolic constitutions against those bearing prohibited arms or committing other crimes. for i have said, and i repeat, that the just anger which excuses him from the one crime should also excuse him from the others, since this reason is everywhere and always in his favour, that he was not of sound mind, according to what was affirmed in our information from § _agnoscit fiscus_, down to § _quo vero ad litem_. and just as this cause is enough to gain for count guido a diminution of the penalty, so should it be considered to be sufficient likewise to gain that favour for his fellows, who as auxiliaries cannot be punished with a greater penalty than the principal himself, according to almost innumerable authorities, and they of great name, who were alleged in my past argument, § _quæ dicta sunt_, with the following, and in my present argument, § _verum et sociis_. to this, no response has been given by the other side. this is all the easier as regards blasio agostinelli, who has not at all confessed that he killed or wounded any one, but only that he was present, as we have formerly considered the matter in our information, § _quoad blasium_. and as to domenico and francesco, beside what has been deduced in favour of the others, they are foreigners, and are therefore not bound by the banns of the governor (for by these, men who live outside of the district are not bound) nor by the apostolic constitutions prohibiting the bearing of arms, as we have said in our past argument, § _quae eo facilius_. this is all the more so since domenico still asserts that he is a minor, and for this purpose he was so described in the prosecution (page ). and as regards francesco, beside the abovesaid description in the same prosecution (page ), we have the baptismal register, which conclusively proves his age. [citations.] for he was born the th day of february, , from which it is evident that at the time of the commission of the crime, which is to be had in regard for punishment [citations], he had not completed the twenty-fourth year of his age. and to one less than twenty-five years old the penalty should be diminished, etc. [citations.] and this indeed is of necessity, and not at the discretion of the judge, because such diminution of penalty arises by advantage of law that has been passed and from intrinsic reason, diminishing the penalty. [citations.] although there are not lacking some authorities who think the contrary, namely that it all depends upon the discretion of the judge, yet our opinion is the truer and the more generally accepted in criminal causes which are not very atrocious. [citations.] and when the crime is merely savage, or more savage, the judge is obliged by the very necessity of his duty to diminish the penalty, according to those authorities recently alleged. [citations.] this opinion also has a place in the crime of murder, notwithstanding the order of the text. [citations.] "if any one should make you a defendant under the cornelian law, it is suitable that your innocence shall defend and purge itself by your minority." for the order of this text should be interpreted thus, namely, that a delinquent who is a minor is not to be excused entirely, but is only to be punished more mildly, according to the old authorities who are cited with abundant hand by farinacci. [citations.] this is especially so when, as in the present case, the delinquent minor does not sin alone, but in company with others; for then he is presumed to be seduced by them, and therefore the ordinary penalty comes to be diminished the more readily for him. [citations.] we do not know whither the fisc pretends to turn for the destruction of these foundations in law, because my honourable lords, the counsellors of the fisc, have claimed nothing as to this matter, either in their past argument or the present one. for when they claim to escape our exception by the florentine statute [citation], that a minor of sixteen years is punished criminally, other responses are at hand: first, that the provision of this statute does not extend to crimes committed outside of the territory of the said state, but that the place of the crime and its statutes should be attended. then these indeed cease, as they do in the present case, because the banns of the governor have no place when there is argument for the punishment of a foreigner. this fact arises from defect of power in the prince or official establishing them, according to what was alleged in the past argument, § _quae eo facilius_, and the one following. for then the criminal should be punished according to common law. [citations.] the second response is that the statute says nothing else than that a minor of sixteen years cannot be punished with the ordinary penalty of the crime. consequently it ought to hold good in our case, since we are indeed arguing about a minor exceeding sixteen years, but of one less than twenty-five years old. such a rule should be drawn from common law, in view of which the said statute in such a case receives a passive interpretation. [citations.] caballus testifies that he saw it so practised in diminishing the penalty to one less than twenty-five years, that is to one who was eighteen years old. [citations.] finally the third response, and the one that lays the axe to the root of the tree, is that the accused is not of the city of florence, nor of its territory, but of the territory of arezzo. but the city of arezzo and its dependencies are not bound by the statutes of florence; first because they are not called subjects, but vassals, of the said city of florence; and, second, because the city of arezzo has its own statutes. [citations.] for reference is had to the ruling state, when other subject states have not their own statutes; but it is otherwise, if they have them. [citations.] and so they are contrary, or incompatible. [citations.] soccinius [citation] bears witness of what manner these statutes of arezzo are, as compared with those of the city of florence, etc., and this is plain from the rubric, etc., where it is commanded that those under twenty-five years cannot be rendered liable, without certain ceremonies, as paolo di castro counsels. [citation.] for from this statute it is sufficiently evident that in the said city and its environs a less age is the rule according to common law. so far as the fisc may have foundations, which in our feeble judgment we have been unable to guess, i pray that these be kindly communicated to me, lest the poor accused minor may remain undefended. finally, as regards count guido, i pray that notice be taken of the unfortunate condition of himself and of his noble family. for all of his family and connection have had enough to lament even to the last breath of their lives, when they look upon the ignominy brought upon them by this woman and her parents. and because of this, there has been doubt up to the very present moment whether one nearly related would go mad. and the excellent piety of our most clement prince and most illustrious lord has declared this, to whom the accused himself with his whole heart commends himself in the arguments made in his defence, not to speak of what they may learn about it from the anonymous author [pamphlet ]. [citation.] desiderio spreti, _advocate of the poor_. letter written by the honourable signor giacinto arcangeli, procurator of the poor, to monsignore francesco cencini, in florence, in which he tells him that the sentence of death had been executed in rome against the guilty on february , --that is, that franceschini had been beheaded, and the other four hanged. [letter i.] to the illustrious signor, my most worshipful signor and patron: too late have arrived those proofs, which were sent to me by your honour, on behalf of signor guido franceschini of blessed memory. for when the congregation of monsignor the governor had determined, in spite of the reasons given in his favour, that signor guido was guilty under the death penalty, i obtained, with much trouble to myself, some delay for proving his clergyship alleged by me. to this end a messenger was dispatched to arezzo. but since the sanctity of our lord [the pope] did not deem it wise to postpone the execution of the sentence already decreed, he has seen best by special writ to make denial of any clerical privilege, which might have been claimed [in guido's favour], and also as regards the minority of francesco di pasquini, one of the accomplices. hence sentence against all five has been executed to-day, with distinction only in the manner of their death, as guido's life was ended by decapitation. this consolation survives for his relatives and friends, that he has been pitied by all men of honour and by all good men. confessing my own shortcomings, i cannot deny feeling infinite regret, as i attribute the whole outcome to my inability in offering the valid grounds. may god reward his house and all his friends with abundant blessedness for this tragic accident. desiring your further commands, i reaffirm myself, as ever, your excellency's most obedient servant, giacinto arcangeli. rome, _february , _. to the illustrious signor, my most worshipful signor and patron, signor advocate francesco cencini, florence. letters written by signor gaspero del torto and signor carlo antonio ugolinucci to the aforesaid monsignore francesco cencini. [letter ii.] the proofs you send did not arrive in time, because to-day finally, after so many disputes, the execution of poor signor guido has taken place, he having been beheaded, while the four cut-throats have been hanged. the case was decided tuesday, but because it was a churchman who had sinned, and because it was claimed that the death-sentence was not in keeping therewith, a messenger was dispatched to arezzo later on to get proofs of it. but the pope yesterday set his hand thereto, and has decided the case, so that to-day it has so followed completely. now that the will of god has been fulfilled that he should suffer such a punishment, it has at least been brought about, in view of the arguments made in his defence, that he died the death of a gallant man. for aside from the fact that he has died with exemplary courage, he has also been pitied by all gallant men, and his house has lost nothing in the matter of reputation. all rome was there, as you may well believe. and [the mistake] cannot be made good with such speed as this may be written, because there have not been lacking admonitions of greatest consequence, since the ambassador of the emperor spoke of that point on tuesday, as he himself told me day before yesterday; and than the matter was settled precipitately. i have finished the argument before the congregation of the council, and at any time that monsignor secretary wishes to take it, i think we shall be ready. i pray you favour me with those copies of the proof as soon as possible. and if canon philippo does not give us the opportunity, he should be good enough to acknowledge it to me that i may think of other measures, wishing once for all to get out of this imbroglio if it shall be possible. and finally, i remain with all reverence, my most illustrious and most excellent signor, your humble and obedient servant, gaspero del torto. rome, _february , _. to the most illustrious and most excellent signor, my dear signor, signor francesco cencini, florence. [letter iii.] my most illustrious and excellent signor, my most worshipful patron: tuesday this most unfortunate case was brought up and the congregation of the governor decided--delay and according to instructions. the instructions were that they would await the proofs of the well-known clericate. at this favourable decision the defence took heart and guido's good friends began to breathe again. then last evening at eight o'clock monsignor signed of his own accord the warrant, in denial of the clergyship which might be alleged and of the minority of one of the accomplices. no sooner had he signed the warrant than the news of it sped throughout the city, and with it the assurance of the sentence, which has been executed to-day since dinner against the five; that is, the loss of his head in the case of signor guido, and the gallows for the other four accomplices. i will not tell your excellency my own grief, because you yourself will be able to be a true witness of it. these proofs would have been of the greatest relevancy, but not in this case, because monsignor wished it so. i enclose the fisc's argument, except a single response, which i will send to you as soon as i can lay hands on it, that your excellency may have the entire case. now that signor advocate del corto has abandoned his own interests i may serve your excellency in the matrimonial case and in the other of gomez. therefore i set myself to all that in order that i may serve your excellency, praying evermore your continual commands, that i may ever be your excellency's obedient servant, carlo antonio ugolinucci. rome, _february , _. [file-title of pamphlet .] _by the most illustrious and most reverend lord governor in criminal cases, or by the most excellent lord venturini._ _roman lawsuit._ _for the heir-beneficiary of the former francesca pompilia, formerly wife of the former guido franceschini, against the fisc and associates in the lawsuit._ _memorial of fact by the honourable procurator of the poor._ _at rome, in the type of the reverend apostolic chamber_, . romana [pamphlet .] most illustrious and most reverend lord: in the contention most sharply and most learnedly carried on between the defenders of the poor and the fisc in the case of the murders committed by persons led by count guido franceschini against the person of francesca pompilia his wife, and pietro and violante comparini, i refuse to descend into the arena, lest i may seem to fail in the office which i discharge in common with the said defenders. my silent pity has delayed and let time slip by; because i believed it would be to the prejudice of guido and his fellows imprisoned for that offence (in whose excuse the plea of injured honour is especially strong) if i should wish to push the defence (which was committed to me long ago) of the shame and honour of the same francesca pompilia; for her tender mind has been stained by no infamy arising from impure lust, and against her the suspicious husband could have made no objection, unless wife-murder had followed, as if from this he wished to prove the adultery merely because he could then kill his wife, and he killed her that she might be believed to be an adulteress. but now since the case has been most sadly terminated as regards all of those imprisoned (for thus these things terminated which should not have been begun) i begin anew the dispute over that most unfortunate question, and assert most safely (both for the reasons fully given in my argument for exclusion of the asserted rape, which is reassumed gratuitously, and for those more fully gathered by his honour, my lord advocate of the fisc, in his very learned allegations distributed in both presentations of the case), first that the memory of the aforesaid francesca pompilia should be utterly absolved from the crime of adultery, which was unjustly and all too bitterly charged upon her by her husband, and second that declaration should be made by a definitive sentence that she has never violated her marriage vow. and this is in spite of the fact that such insistence may seem incongruous. for although all crimes cease with the death of the criminal [citations], nevertheless when a crime is atrocious, and of such a nature that it involves in itself a brand of infamy, its memory ever endures. and therefore it is worth while for the principal to vindicate the fame of the authoress from the asserted crime of adultery, etc. pellegrini speaks as follows: "the thirteenth case is when the heirs of one dead, for the purpose of purging him from the infamy which works against him publicly on account of crime, wish that [the court] take knowledge of the crime itself, for the purpose of establishing his innocence, for this is conceded by law." and bossius asserts: "note that even if death does utterly remove any further penalty, yet the heirs of one who is dead may make a stand for his fame and honour, in order that a declaration may be made about that crime." and caballus: "for although with the death of the delinquent, a crime may be said to be extinct so far as his own person is concerned, yet the heirs of the accused, in their own interest and to wipe out the infamy of the one who is dead, may petition that the court go on to give an opinion, and that it be declared that the dead one had not committed crime." and he affirms the same under the following number. and indeed this is not without manifest reason. for just as the fisc may go further in the investigation of a crime that had been perpetrated during the lifetime of the one now dead, even for the purpose of damning his memory [citations], likewise it cannot be denied by the principal himself, as the beneficiary heir and successor of the same pompilia and pietro comparini, that inasmuch as her innocence is evident he may insist upon carrying away a sentence of absolution; for in other cases any one at all may have a chance to defend one who is dead. [citations.] and to delay such a judgment it is not right that the flight again be alleged, which the said pompilia made in the company of canon caponsacchi, with whom she was arrested at the inn of castelnuovo. for to remove that charge it is quite enough for one to allege the judgment of this most illustrious congregation, given under the date of february , last past, against guido franceschini, because of which he was publicly put to death on the twenty-second day following, notwithstanding the fact that, to avoid the penalty of wife-murder, he insisted solely upon the asserted adultery, which he claimed had resulted from the aforesaid flight from home. all suspicion whatsoever of her dishonesty ceases because of the defences then made and because, in the very prosecution, there was apparent a very just reason, on account of which the wretched wife attempted to flee thus from the home of her husband. nor was it for the purpose of satisfying lust with the asserted lover, but that she might go back to her own hearth, and there, with her parents, might live a safe and honest life. this cause is very plainly proved by the notorious quarrels which arose on account of the poverty of the domestic establishment immediately after her arrival at the city of arezzo along with pietro and violante comparini in execution of the agreement included in the marriage-contract. and on account of this poverty the comparini were obliged, after a few months, to go back to the city, with no small bitterness on account of the deception which they had detected. this is evident from the letters of abate paolo franceschini, which presuppose these complaints that resulted from the said deception, and especially from the letter written march , : "i write again to you that i do not wish to imitate him in his manner of writing, not being of his mind to sow broadcast in my letters such words as would well merit response by deeds, and not by words. and these are so offensive that i have kept them for his reproof and mortification." and further on: "so that if you give trouble, which i will never believe, you yourself will not be exempt therefrom." it is also evident from the letters given in my past information, and especially in § _videns igitur_, with the one following. and although this does not show the nature of the altercation, yet, since abate paolo has not shown the letters written to himself, the presumption presses upon him very strongly that the complaints were just and that the cause of their quarrels and altercations was well founded. [citations.] it is also true that a very bitter lawsuit was brought by pietro comparini for the nullification of the dowry contract and for the proof of the pretence of birth, which had been made by violante, the mother, both to deceive her husband and to bar his creditors, who were pressing him hard at the time. and since the dowry included all the property and the entire patrimony of comparini, which was of no small value when we consider the rank of the persons concerned, controversy had indeed been raised for a considerable amount by the father-in-law. and this, as experience teaches from time to time, is accustomed to bring forth implacable hatred and deadly enmity. [citations.] it produced indeed such an effect for this unfortunate wife, so that the love of her husband, which had long been disturbed by the preceding altercations, was finally quite extinct. and this was so to such an extent that she often found herself exposed to deadly peril because of the severity of her husband, who at times pursued her with abuse, and again even with a pistol. and it cannot be questioned that such perils are quite suited to strike fear even into any hardy man. [citations.] hence it can be much more affirmed of francesca pompilia, a girl of tender age, who was destitute of all aid, and away from her own home and her parents. [citations.] and mogolon [citation] declares that the mere sight of arms, even if the one who has them does not use them nor unsheath them, is just cause for fear; and in § , _no._ , he considers the absence of relatives as a ground for fear. and d. rainaldi [citation] says that it is enough if one sees signs or acts of manifest desire, or such as are preparatory. therefore, since so many very relevant circumstances concur, on account of which pompilia was moved to desert her husband's bed by flight, all suspicion whatsoever of dishonesty and of violated conjugal faith is utterly removed. for whenever we have two causes, one of which is lawful and permissible, while the other is iniquitous and abominable, the former is to be fully received, and thereby the charge of crime is quite excluded. [citations.] [and this is true] in spite of the fact that this lawful cause may seem to be excluded [first] by the letter written by francesca pompilia to abate paolo. for in the letter, after she had thanked abate paolo because he had joined her in marriage with his brother, pretence is made that her parents gave her the depraved counsel to destroy the entire home and to go back to the city with her lover; [it also makes pretence] that since their departure she was enjoying a quiet and tranquil life. [second] from the company of the canon giuseppe caponsacchi, with whom she had fled; because of which he was banished to civita vecchia for three years. for however it may be with the asserted letter, whether it is substantiated or not, and whether or not the qualification should be considered probable, which is added in her sworn testimony by the same pompilia, namely that her husband had marked the characters and she had blackened them with ink by tracing them with a pen, because she herself did not know how to write; yet it is certain that if the letter be read attentively it will be absolutely impossible to assert that she had written it with a calm mind. for who can be found so unmindful of filial love and duty toward parents as to persuade himself that this tender girl could have laid upon her parents such detestable crimes? because at the time she was not more than fourteen years old, according to the certificate of baptism given in the summary of the fisc, in the second setting forth of the cause, no. . and she was away from her own home and still grieving for the very recent departure of her parents, and was badly treated in the home of her husband, as is clearly shown by the continual complaints and recourse made not merely to the most reverend bishop, but also to the lord-commissioner of the city. nor is it probable that she would have informed her brother-in-law, who was so very unsympathetic toward her, of these matters unless, as she has frankly confessed in her sworn examination, she was compelled thereto by her husband. nor without very evident peril of death could she show any reluctance to him because of his excessive severity, which she had very often felt before. and as this improbability is well suited to strike horror into those who read it, so likewise it very well shows that the letter was not written voluntarily, but under compulsion. [citations.] caballus asserts that what no sane mind would approve is inadmissible. [citation.] and indeed such excessive cunning in extorting the said letter from the wife plainly proves guido's craft, and the fact that the letter was obtained by false pretence, in order that he might quiet the mind of the same abate, his brother. for the latter had been harassed by continual complaints on account of ill treatment of the wife, and had not ceased to criticise guido daily for them. [citation.] as to her association with canon caponsacchi, this likewise does not seem enough to establish the blot of dishonour. for the most wretched wife was utterly destitute of all earthly aid and had vainly entreated the authority of the most reverend bishop, and of the lord-comissioner, to free her from deadly peril; and on account of her age and sex it was not suitable that she should flee alone or in the company of some low-born serving-woman, for in that way she would carelessly expose herself to graver peril, as might have happened to her if she had been overtaken while alone on the journey. for then it could be said of her: "she fell upon scylla while trying to avoid charybdis." therefore we should not be surprised if she took the aforesaid canon as a companion. for he had been proposed to her by both canon conti and gregorio guillichini, who were related to pompilia's husband. and it is utterly incredible that they would have consented to such a flight if they had not known it was quite necessary to evade the peril of death, which they very well knew was threatening the luckless wife, and if they had not had strong faith in the honesty and integrity of her companion. therefore, as such a necessity was pressing so hard upon her, her prudent choice of the lesser evil eliminates any shadow whatsoever of her pretended dishonesty. [citations.] [this is especially true when we] consider the manner in which the flight was executed, by taking the most direct road to the city with the utmost possible speed. and it very well shows that the sole motive was to save her life, and not to debase herself by licentious delights. for if this latter had indeed been the principal cause, she would not have gone to rome by the shortest road, where she might immediately be taken by her brother-in-law and her parents, but would have gone to some more distant regions, or else she would not have gone with such swiftness, but would have delayed out of the public highway, and in a place where her husband could not find her, and where she could fulfil to satiety her lust. this utter improbability therefore very well shows the truth of the cause for flight adduced by the wife in her sworn testimony--namely that she had gone swiftly to the city in order that she might there place her life and honour in safety in the home of her parents. for just as the strongest sentence of blame may arise from mere probability, so likewise no less presumption of innocence should arise from this improbability. [citations.] and this is strongly urged by the frank protestation made in the very act of arrest at the inn of castelnuovo to the husband himself by the canon, who rebuked him concerning this flight: "i am a gallant man, and what i have done, i have done to free your wife from the peril of death." so testifies jacopo, son of the former simon, a witness for the fisc, in the prosecution for flight (page ). and an example was offered by me in my allegation as regards that flight, namely that of scipio africanus. for when the beautiful young wife of aleucius, the chief of the celtiberi, had been captured by scipio's soldiers, he said in restoring her to her husband: "your wife has been with me as she would be with her own parents. her virtue has been preserved for you so that she can be given back to you again, a gift unviolated and worthy of me and you." titus livius bears witness to this in his _histories_, book , and page in my volume. and although it may be very difficult for a beautiful woman to preserve the decorum of her honour while journeying in the company of a young lover, yet it is not utterly impossible, as the examples seem to show, which were related in my allegation, § _quidqud dicat_. and to these i add that of penelope, of whom ovid sings in book of his elegies [_amores_, iii., , ]: "although she lacked a guard, penelope continued chaste among so many suitors." and this is especially true since neither the journey nor the company of the canon were voluntary, but were merely for the purpose of avoiding the peril of death. and since such necessity was present, the presumption drawn from ovid's _ars amandi_ is rendered still further inapplicable, namely that "from a passionate young man, can she be believed to have returned a virgin?" [_heroides_, , .] nor do the letters which were found in the closet of the inn at castelnuovo seem to stand in the way and hinder the sentence petitioned, and impose a blot of infamy upon francesca pompilia. it is claimed that these were written by her to the canon on account of the very devoted love with which she was pursuing him. but the exceptions and responses made in the past informations hold good. the first is that they were not acknowledged by her, nor was the identity of the handwriting proved; and some uncertainty is still present, since it is not evident to whom they were directed; nor would it be improbable that they might have been framed by the husband. for he was present at the capture and search, and hoped, indeed, that therefrom might result more readily the fixing of the crime of adultery. and he insisted very strongly upon this, in order that he might gain the desired dowry and lucre. this mere possibility to the contrary is enough to avoid the proof, which it is claimed may be drawn from them. [citations.] the second response is that, even though such exceptions as the above might not hold good, yet no proof of violated conjugal faith and of dishonour can be drawn from these letters. for even though proof of adultery may result from love-letters, it is utterly excluded in our case when we see that they were directed to a licit end, namely toward soliciting the canon that he might afford her aid in her flight and that she might avoid deadly peril. for then, just as the end is permissible, so should the means also be considered lawful and permissible, even though suspicion is not lacking; for these should be considered, not in themselves, but on account of their end. [citations.] but indeed, unless from the love-letters themselves there result an implicit confession of fornication, proof of adultery cannot be drawn from them. [citations.] it should be specially noted that she had very strong confidence in her own continence and in the integrity of the canon. and she trusted him much, and hoped that he would conduct himself modestly during the journey, since it is evident from these same letters that she had found fault with him for his freedom once: "and i marvel, that you who have been so chaste, have composed and copied matters that are so dishonourable." and further on: "but i would not have you do in any case as you have done in these books. the first of them is honourable, but the other octaves are quite the contrary. i cannot believe that you, who have been of such honour, have become so bold." for such sincere objurgation and the very tenor of the letters in which no dishonesty is read, clearly show and declare the spirit of pompilia, who wrote them. for just as words are to be understood according to the thought of the one proffering them, so likewise should letters be interpreted according to the intention of the one writing them. [citations.] since therefore the honour and modesty of pompilia is vindicated from the flight and the letters, of still lighter weight are the other proofs of pretended dishonour. these are deduced from the approach of the canon to her home for the purpose of speaking to her; from the insidious manner in which the flight was prepared and put into execution, by means of an opiate administered to her husband and the servants; from their mutual kisses on the journey; and from their sleeping together at the inn of castelnuovo. for beside the general response that no conclusive proof is offered for all these, such as would be necessary to establish pompilia as guilty of adultery, there is a separate response for each of them. the entry and egress at night time into the home of francesca rests merely upon the deposition of a single witness, maria margherita contenti, who is under two very relevant exceptions: namely those of singleness and of harlotry. her word therefore can impose no blot of infamy. [citations.] and since such approach would tend toward the single end of arranging for the flight and rescue of the unfortunate wife from the very imminent peril of death, it should not be presumed to be for an evil end. for when an express cause is plainly present, to which a matter may be referred, and this cause is entirely lawful, the matter should not be attributed to a cause that is illicit and criminal. [citation.] the insidious manner, also, whereby francesca pompilia put into execution the flight, by preparing an opiate for her husband and all the household (aside from the fact that it is not proved), would afford proof of sagacity rather than of dishonour, even if it were proved. for the wife would have been very foolish if she had attempted flight without such a precaution. under the same lack of proof labours the asserted mutual kissing during the journey; for that proof is entirely too slight, which is pretended to result from the deposition of a single witness of the lowest class. especially since his word is shown to be too much prejudiced; for he swears that, while he was driving the carriage swiftly at night time, he saw francesca pompilia and the canon kissing each other. nor does he give any reason, as that the moon was shining, or that some artificial light was present to dispel the darkness. inasmuch as such a detail is necessary in a witness who is testifying about a deed at night time, its omission takes away all confidence in him. [citations.] for there is to be added another very strong improbability, namely that, while he was driving the carriage with such velocity that it seemed to fly rather than to run, he could see their mutual kissing by looking backward. still more is this improbability increased by the very word of this same witness, since he swears that he had driven pompilia without knowing that it was she, until afterward returning to arezzo, he had met guido franceschini, her husband, following her. because if he had seen her kiss, he would have recognised her straightway, since he had often seen her before and she was well known to him. and therefore it should be absolutely declared that, either influenced by the tedium of his secret prison, he had been compelled to swear so, or, as is more probable, since on account of the very great speed of the carriage the bumping together of those seated therein might chance, he had believed that this chance jostling of their heads and faces was for the base purpose of kissing. hence the proof arising from his deposition was justly held in contempt in the prosecution for flight. and it would have been considered if it had had any probability. finally the proof of dishonour drawn from the asserted sleeping together in the same tavern at castelnuovo is far weaker, since it was constantly denied by both pompilia and caponsacchi in their testimony. and only a single witness, the house-man of the same tavern, swears to it; and this also not from certain knowledge, but presumptively, because they had asked him for a room with a single bed. canon caponsacchi frankly confesses why he had ordered that only a single bed should be prepared--namely that francesca pompilia, who was worn out because of ill-health and the discomfort of their precipitate journey, might rest a little, while he himself kept guard. such an act should not be assigned to an illicit cause, as cravetta [citation] advises in such circumstances. and in no. , he says that interpretation should always incline to the humaner side, even when the rigorous side may seem the more likely. and the same author continues thus in _nos._ _and_ . for it would not suffice as a full proof of adultery that any one be found alone and naked with her alone and naked, and that a young man be found unclothed and with shoes off in a closed chamber with a woman. much less can such proof arise from a very brief delay in the same chamber for the purpose of keeping watch. very slightly does it stand in the way that francesca pompilia, in her cross-examination, concealed this delay by asserting that she had arrived at the tavern at dawn. for she was very well aware of the credulousness of her husband, and possibly asserted this to avert further suspicion of violated honour, which certainly might have arisen if she had confessed that she had spent a longer time in the tavern. as even if she had not denied such a stay, the confession under circumstances that still argue for the preservation of her modesty would not have been to her prejudice, so likewise the lie can do no injury. [citations.] but all suspicion of pretended dishonour is quite eliminated by the assertion of the most unfortunate woman, which was made in the very face of death, after many severe wounds had been inflicted upon her by her husband. [for she declared that] she had never sinned against her marriage vow, as is very evident from the numerous depositions of religious men, who ministered to her in death. they assert that they heard her continually praying that she might be given no forgiveness by the divine clemency for such a sin. this assertion made in the very face of death, deserves all faith, since no one placed in that condition is presumed to be so unmindful of eternal safety as to be willing to lie. [citations.] finally, no foundation for accusing the memory of francesca pompilia of dishonesty can be established upon the asserted decree of this most illustrious congregation, by whom canon caponsacchi was condemned to three years' banishment in civita vecchia, with a statement made of his running away and criminal knowledge of francesca pompilia. for, as the fisc himself admits, there was demanded by me, though not _in extenso_, the modification of that title by the honourable judges, with the approval of his excellency the governor. and therefore, in the order for imprisonment, these words were suppressed and others were put in their place: _pro causa de qua in actis_. all further difficulty is removed from the mere consideration that such a decree had been issued, while no defences had been made for francesca pompilia, and while she was still utterly without a hearing. for she had not the slightest knowledge of it, since she had not been notified. but in the decree for the assignment of the home as a prison, only a cause relative to the trial was expressed. hence it could not injure her, since it was issued against a third party while she herself had not been cited. [citations.] and in the circumstances that a sentence given against an adulterer can do no injury to the adulteress when she has not been cited is the text. [citations.] "if he is condemned, the wife is not condemned thereby, but shall carry on her own case." [citation.] this is especially true since we are not now contending to free the husband from wife-murder, and to infer a just cause apart from belief in the dishonour of the wife resulting from the said decree, and which would excuse him from the penalty of the cornelian law. in this case, the changing of the said decree might possibly serve for an escape. but we are contending about the damning of the memory of a woman now dead, and about rescuing her and her family from infamy. and in the latter case just as such a harsh decree could not injure her during her lifetime, so likewise it cannot do her injury after her death. antonio lamparelli, _procurator of charity_. [in old writing.] and according to the letter of carolo antonio ugolinucci, may , , i understand that the criminal court after two votes, decided on absolution. instrument of final judgment [pamphlet .] given for the restoration of the good name and reputation of francesca pompilia, now dead; formerly the wife of guido franceschini of arezzo, now dead; for acquittal in favour of domenico tighetti, as an heir beneficiary of the same francesca pompilia, from all disquietude, all molestations, vexations, and perturbations, brought or threatened to be brought by the venerable monastery of saint mary magdalene of the convertites in the corso; together with the citations lawfully executed in observation of the four terms to instruct themselves as to the appeal and its legal prosecution, in order that the same sentence might pass on, as it has passed on, to judgment, because no appeal has been interposed. in the name of god, amen. september , , under the sixth declaration in the eighth year of the pontificate of the most sacred father in christ, etc., innocent xii., pope by divine providence. this is a copy, or transcript, of the citations made by my own act, and written below, and of the sentence rendered respectively of the following tenor, namely: the most reverend and most illustrious governor in criminal matters: let the undernamed principals on the other side be cited, etc., to appear in the criminal court to-morrow, which will be the nineteenth day of the current month, at the accustomed hour of convening court, lest it seem good that each and all the terms be repeated as ill founded, and that they therefore are to be held and observed as null and void in their force for any powers whatsoever, and lest the one so insisting be freed from censures, so far as, etc., it be concluded, or seem best to be concluded in the case, and that the final sentence be heard in due form according to the aforesaid insistence by domenico tighetti, heir-beneficiary of the former francesca pompilia, the wife of the former guido franceschini, as principal, or, etc. notary for the poor. the most illustrious francesco de gambi, procurator general of the fisc, and of the reverend apostolic chamber. the honourable giovanni maria serbucci, procurator and manager of the lawsuit brought by the former guido franceschini. the honourable francesco paracciani, procurator of the venerable monastery santa maria magdalena of the convertites in the corso. against the procurator general of the fisc, etc. he says that no sentence can be given, unless in favour of the fisc, and so far as, etc., insists that he be granted delay for the purpose, and in the meantime they cannot go on to any expediting of the cause, except for reason given in full court, and by the vote of the lords thereof, and by testimony of the opposition in prison, and without citing all who have interest, etc., this th day of august, . francesco gambi, _procurator general of the fisc_. i have made the above citation against the fisc personally this day, and against the others by copy, which was sent to their homes, this august , . balatresius. aloysius pichius, _substitute for the fiscal general_. _august , ._ when he had made statement of fact, antonio lamparelli, procurator, presented his case and petitioned as above. thereupon the most illustrious and most excellent lord, marcus antonius venturinus, j.v.d., who holds the judicial bench, for the most illustrious and most reverend governor of our dear city in criminal cases, gave sentence, as in this schedule, which he has taken in his own hands, has seen, read, and subscribed, and given and consigned to me as a notary for publication of the following tenor, etc., in the presence of antonio bernardino piceno and antonio toparino of caprarola, witnesses, etc. in favour of domenico tighetti, in the name, etc., against the fisc and those consorting with him in the suit. in the name of christ, whom we have invoked, we who sit for this tribunal, and who have only god before our eyes, give this as our definitive sentence, which we offer in these writings by the advice of those skilled in law, in the cause or causes which have been tried before ourselves in the first place, or in the second, and which are now being considered, between domenico tighetti, as heir-beneficiary of the former francesca pompilia, wife of the former guido franceschini of arezzo, on the one part; and the fisc and giovanni maria serbucci as procurator and manager of the lawsuit of the former guido franceschini, and francesco paracciani, procurator of the monastery of santa maria magdalena of the convertites in the corso, for all their rights and parts in that interest, on the other part; concerning and upon the pretended adultery committed by the said former francesca pompilia with canon giuseppe maria caponsacchi, and as regards other matters in the conduct of the cause or causes of this kind, more fully deduced, etc. by authority of the decree for the remission of the case, which was made by the most illustrious and most reverend auditor s.s., by the acts of pascasius, concerning which in the conduct, etc., and for cause given in the court, and by vote of the same, we say, pronounce, declare, and finally adjudge from what has been newly deduced, that _proof is not established as regards the pretended adultery_, and therefore the memory of the same francesca pompilia should be and is _entirely_ restored to her pristine good name and reputation; and that the same domenico tighetti, in whose name the above was deduced, should be and is absolved and liberated from each and all disquietudes, molestations, vexations, and perturbations brought, or threatened to be brought, by occasion of these as on account of the statement of these we have restored, absolved, and freed him, as above. and for this restitution and absolution and freedom, we wish and command that it be held as law that the suit or suits, of whatever nature, which have been brought thereupon be abolished, as we abolish them. and we charge that perpetual silence be imposed upon the fisc and his consorts in the suit. and we have thus spoken, pronounced, declared, and finally given sentence, not only, etc. i, marcus antonius venturinus, who hold the judicial bench have so pronounced. given on this th day of august, in the presence of antonio bernardino piceno, and antonio toparino of caprarola, witnesses, etc. by the most illustrious governor of the city in criminal cases, or the most excellent lord venturini. let the undernamed be cited for learning the appeal, and its lawful prosecution for the first time, at the aforesaid instance of domenico tighetti, as principal heir-beneficiary of the aforesaid francesca pompilia, formerly wife of guido franceschini: charitas. the honourable giovanni maria serbucci, as procurator and manager of the legal proceedings of the said former guido franceschini, as principal on the other side. the honourable francesco paracciani, the procurator of the venerable monastery and convent of st. mary magdalene of the convertites in the corso for all, etc. i have made the said citation at his home, august , . molinellus. _september , ._ when we had made statement of fact, r. d. alexander cassar, substitute procurator of charity, appeared, petitioned, and was granted, as above. by the most illustrious governor of the city in criminal causes, or by the most excellent lord venturini. let those named below be cited for learning of the appeal and its legitimate prosecution this second time, at the aforesaid instance of domenico tighetti, heir-beneficiary of the former francesca pompilia, formerly wife of the former guido franceschini, principal, or, etc. charitas. d. giovanni maria serbucci, as procurator and manager of the lawsuit brought by the former guido franceschini, as the principal on the other side. d. francesco paracciani, procurator on the other side for the venerable monastery and convent of st. mary magdalene of the convertites in the corso, for all, etc. september , , i have made this. molinellus. by the most illustrious governor in criminal causes, or by the most excellent lord venturini. september . when he had made statement of fact, r. d. alexander cassar, substitute procurator of the poor, appeared, petitioned, and was granted, as above. let those named below, be cited for learning of the appeal and its lawful prosecution, this third time, at the aforesaid instance of domenico tighetti, heir-beneficiary of the former francesca pompilia, wife of the former guido franceschini, as principal, or, etc. charitas. d. giovanni maria serbucci, as procurator and manager of the lawsuit brought by the former guido franceschini, as principal on the other side. d. francesco paracciani, procurator of the other side for the venerable monastery and convent of santa maria magdalena of the convertites in the corso, for all, etc. i made this september , . molinellus. september , . when he had made statement of fact, r. d. alexander cassar, substitute procurator of the poor, appeared, petitioned, and was granted as above. by the governor in criminal causes, or the most excellent lord venturini. let those named below be cited for learning of the appeal and its lawful prosecution, this fourth time, and of the final presentation, and the decree, etc., at the aforesaid instance of domenico tighetti, heir-beneficiary of the former francesca pompilia, formerly wife of the former guido franceschini, as principal, or, etc. charitas. d. giovanni maria serbucci, as procurator and manager of the lawsuit brought by the former guido franceschini as principal on the other side. d. francesco paracciani, as procurator of the venerable monastery and convent of santa maria magdalena in the corso, for all, etc. i have done this, september , balatresius. _september , ._ when he had made statement of fact, r. d. alexander cassar, substitute procurator of the poor, appeared, petitioned, and was granted, as above. i, domenico barlocci, notary of the court of criminal causes of the most illustrious and most reverend governor of the city, as notary for the poor, have found this copy correct by collating it, although it was extracted from the original documents by one who is trustworthy in my eyes, etc. in pledge of the above, i have subscribed and have published it, as i am required to do. [the seal of the said notary.] the secondary source of the ring and the book a contemporary manuscript pamphlet "the following pages contain a ms. contemporaneous account of the execution of the principal actors in the tragedy which has been immortalised in the poem of the _ring and the book_. "i am enabled by the kindness of my friend, mr. browning, to give it a place in these miscellanies of the philobiblion society." john simeon. (i shall not attempt to say with what a feeling i correct proof-sheets received on the day subsequent to that which brought the intelligence of the death of this great-hearted and noble-minded man, characteristically good and gracious to the very last.) r. b., may , . the above words are the introduction by sir john simeon and the comment by the poet (philobiblion society miscellanies, xii. - ), on the reprint of the subsequent pamphlet in the original italian. it was found in london by one of browning's acquaintances, who, knowing the poet's interest in the subject, sent it to him. internal evidence indicates that it was probably written (but not published) some few years after the crime, and it is more popular in style than any part of _the book_. the writer during the first half of his pamphlet follows closely the affidavit of pompilia and the second anonymous pamphlet [no. ] of _the book_. he then adds much interesting information as to the murder and the pursuit, arrest, trial, and execution of the criminals. browning uses almost every scrap of additional information it affords. he accepts its fact with the same fidelity he shows in using _the book_, and uses it extensively and without discounting its value as compared with the official record. it is therefore treated as an essential portion of the present source-study. its new matter will be indicated by italics in the following translation. mrs. orr has published somewhat less than half of the pamphlet in her _handbook_ in translation, which has been reprinted in the camberwell browning, and in the _browning guide book_ by g. w. cook. the present version is made directly from the italian text of the philobiblion society reprint. the death of the wife-murderer guido franceschini, by beheading guido franceschini, a nobleman of arezzo, in tuscany, had stayed for some time here in rome in the service of a person of some eminence. he decided to take a wife with dowry enough to be of advantage to his own house. when he had revealed this desire to a certain hairdresser _near the piazza colonna_, she proposed to him the signora francesca pompilia, thirteen years of age, the daughter of a certain pietro comparini and violante peruzzi. for beside the promised dowry, she was heir to the reversionary interest in bonds and other properties worth about , scudi. when he had heard of this advantageous dowry, which seemed to him to be quite to his point, he lost no time in revealing it to his brother abate paolo, who had dwelt here in rome for many years in the service of a cardinal. he went along with guido to the mother of the young woman, as they flattered themselves that they would succeed better in this way than by demanding her of the father, who was somewhat hard to approach. when they had made it appear that their income was of considerable amount, they succeeded in their intent; although it was then found out that their entire capital did not amount to the total of their income as given in that note. it was easy for franceschini to win over this woman, as _she was driven by the ambition of establishing her daughter in the home of persons of good birth_. she gave her own consent, and so worked upon her husband as to induce him to sign the marriage bond. then when comparini had been informed by a person who knew the resources of franceschini, that they were quite different from what they had been represented to him, he changed his mind, nor did he wish under any consideration to carry out the marriage. _he gave as a pretext the very tender age of his daughter_, along with other reasons. the mother of francesca, however, not seeing any chance to give her daughter to franceschini, had her secretly _married during december_, , _in san lorenzo in lucina_. when this marriage reached the ears of comparini, he was much angered at violante. but she had such a gift of gab that comparini not only agreed to it, but beside the dowry of , scudi, _on which he had already paid scudi, he also made gift of his entire possessions to the couple_. after several days, franceschini decided to conduct his wife and her parents back to arezzo, _and this took place in the same december_. when they had arrived there, the parents of the wife could see that the state of their son-in-law was much worse than they had imagined it. therefore they were all the more embittered at the penuriousness they showed in the food, and many other matters. _one morning while they were at the table they heard their daughter_ [violante according to _the book_] _denied fire for warming her bed_, and saw the franceschini practise many other cruelties toward her. they were much troubled at it, and _all the more so when they saw a canon of the franceschini household, a brother of the husband, rush upon their daughter_ [violante according to _the book_]. _he struck francesca with a dagger in his hand, who had to make her escape by running into a room and shutting the door. then one evening her father went to visit a friend, and when he had come back home he found the door shut. therefore his daughter, who was still awake, was obliged to go downstairs to open it for him, but not without first having called her husband, who never even opened an eye. then when she had gone down to open the door and had gone outside a few steps to meet her father, all of a sudden she found herself shut outside the house along with her father. for that reason they were both of them obliged to sleep outside of the house that night, her father at the inn and the daughter at one of the neighbours._ therefore, more and more, as the days passed, the comparini decided to return to rome. but as they were without money they were obliged to beg it of franceschini, who _scarcely gave them the necessary expenses of the journey_. when the old comparini had departed, franceschini thought to hide what had happened. he constrained his wife to write to rome to the abate, his brother, to tell him that she cherished in her heart his memory. this letter was dictated by the husband himself. the ignorant girl did as guido wished, whose purpose was to have it believed that his parents-in-law were the fomentors of the dissension which prevailed between the couple and the relatives of franceschini. when the comparini had reached rome, ill-contented as they were with the house of their son-in-law, for whom they now saw they had sacrificed their daughter, they did not know how to hold their peace about that matter, of which they themselves had been the cause. all the more so when they were harassed for the remainder of the dowry, beside the fact that they saw the rest of their property in danger. while affairs were in this state a jubilee was announced; under these circumstances violante comparini revealed in confession that francesca pompilia, who was married to franceschini, was not their daughter, but that the birth had been pretended. she had in fact been born of a _poor widow, a foreigner_, and had then been adopted to bring it about that the reversionary interest would fall to their house, and hence to make good the many debts of her husband. _when the confessor heard this, he charged her to reveal all the affair to her husband himself. violante obeyed, and comparini was greatly surprised at it, and rebuked his wife sharply._ he then submitted the matter to judgment before monsignor tomati; the following was spoken in sentence: it should be maintained that francesca pompilia shall be and is in quasi-possession of her relationship as daughter. therefore appeal was taken by comparini to the tribunal of the sacred rota, but the suit still remains undecided. in the meantime the franceschini, seeing that they had been deluded by this circumstance, since they could not get possession of the residue of the dowry, redoubled their cruelties to the poor pompilia even to the point of threatening her with death. hence she was very often obliged to save herself by fleeing into some other house, or before the authorities, or even into the presence of the bishop, _whom she finally begged to save her by putting her in some monastery_. but this prelate thought it better to send her back to her husband's home, urging him not to mistreat her. when the unfortunate woman saw that the admonitions of this bishop had been useless, and that this way of softening the heart of her husband and his relatives had proved vain, and when they reproved her for sterility and for coquetry, and for other faults of their own imagining, she betook herself to an augustinian, romano, that he might write to his superiors or to her parents to find some provision for her. but although the father promised to do as she desired, his letters never reached their destination. the wretched woman was therefore desperate and determined to get to rome in some manner or other. she told the whole matter to canon conti, a relative of the franceschini, to whom she made a most pathetic picture of her situation. he was moved thereby, and answered that he would aid her, as he did, by offering to have her taken to rome by canon caponsacchi, his friend, since he himself ought not and could not do it. when the circumstances had been told to caponsacchi, he was opposed to it, for fear of incurring the anger of the franceschini; but when he had been urged both by conti and the woman, he consented thereto. and on the last monday of april the wife arose from bed as soon as day dawned, without her husband knowing about it. she took some things of her own, some jewels, and money, left the house, and at the gate of the city found caponsacchi, who was awaiting her with a carriage. they mounted together and set out on the road toward rome. when franceschini awoke and discovered the flight of his wife, as he already suspected that she had started for rome, he began to pursue her, and on the following tuesday [should be wednesday] overtook her at castelnuovo in the post-house, where she was in company with caponsacchi. the young woman was not at all terrified at the sight of her husband, but on the contrary she mustered her courage and reproved him for all the cruelties practised upon her, because of which she had been forced to this step. then franceschini was thunderstruck, and did not know how or what to respond. hence he thought it best to have recourse to the authorities. the fugitives were arrested by the governor of the place, and both of them were taken to rome and placed in the new prisons, and were charged with adultery because they had run away together. he tried to prove the charge by certain love-letters which had been found, and by the deposition of the driver. but as the adultery was not proved, the canon was condemned for three years to civita vecchia, and the wife was shut into the monastery of the scalette on the lungara. when the husband therefore saw that this had not helped him in gaining the dowry, he decided to go back to his own country, leaving the care of his case in the hands of his brother, the abate, who was in the service of a cardinal. but although the abate tried by many a turn to succeed in his intent before the tribunals, he could not achieve it. hence he also decided to leave rome. and he was spurred all the more by its becoming known that his sister pompilia was with child. for this reason, the governor of rome had constrained him to consent that she should keep her own home as a prison, under security of scudi to present herself at every demand of the tribunal. the abate indeed was unwilling to give his consent unless pietro comparini should first assume obligation, by an official document, to furnish her with food. _and then, when he had obtained the permission of his cardinal, he sold his furniture and books_, and when he had made them pay over the scudi which had been found upon pompilia at castelnuovo, he left rome. after that pompilia bore a son, _whom she named gaetano, after the saint to whom she made her vows_. franceschini, who was now overwhelmed with manifold troubles, and was urged on now by honour and again by self-interest to take vengeance, at last yielded to his base thoughts and planned to kill his sixteen-year-old wife and her parents. when four other criminals had been admitted to the scheme, he left arezzo, _and on christmas eve reached rome. he stopped at ponte milvio, where there was a villa of his brother. there he remained in hiding with his followers until a time opportune for the execution of his designs should come._ they spied out all the ways of the comparini family, and on january , _which was thursday_, at about seven o'clock in the evening, he approached the comparini home with his companions. he left on guard at the street door biagio agostinelli and domenico gambassini, and knocked at the door. when he had said that he brought a letter of canon caponsacchi from civita vecchia the door was opened to him. immediately this cut-throat franceschini, assisted by the other two criminals, leaped upon violante who had opened it and struck her dead to the ground. pompilia in this crisis extinguished the light, hoping thus to escape the assassins, _and ran to the neighbouring door of a locksmith crying out for help. but when she saw that franceschini was provided with a lantern she went to hide under the bed_; but she was dragged from there, and was barbarously slain _with wounds_ by the hand of her husband. not content with that, he dragged her to the feet of comparini, who was likewise wounded by one of the other assassins, _and was crying out_ "_confession_." _when the uproar of this horrible slaughter was heard abroad, people ran thither, but the criminals succeeded in escaping. but in their haste one of them left his cloak, and franceschini his cap, which betrayed him afterward._ the unfortunate francesca pompilia, under the burden of such wounds as those with which she had been cut to pieces, _implored the holy virgin for the favour of confession, and obtained her prayer_. hence she survived some little while, and _was able to tell about this horrible crime. she told that after the deed was done her husband had asked of one of the cut-throats who had done the murder with him, if she were indeed dead. when that one had assured him, he replied: "let us lose no time, but return to the vineyard."_ and so they made their escape. _in the meantime the police had been summoned, and came with a captain. a confessor was quickly called and also a surgeon who gave his attention to the luckless girl._ when the governor had been informed of the outcome, he _immediately despatched captain patrizi_ to arrest the criminals. _when the posse arrived at the vineyard, he found that these were no longer there, but that about an hour ago they had left in the direction of the highway. then patrizi followed without interrupting his journey, and when he had reached the inn he learned from the host that franceschini had demanded horses with threat of violence, but they had been denied him, because he lacked the necessary order._ hence he had travelled afoot with his companions toward baccano. _patrizi continued his march, and, after taking the necessary precautions_, arrived at the tavern of merluzza. there he found the assassins, who were straightway arrested. on them were found, still stained with blood, those daggers with which they had done the murders, and _upon franceschini were found scudi in money. this arrest indeed cost the life of patrizi, because having been overheated and wounded with a slight scratch he died in a few days._ _franceschini's dagger was of a genoese pattern, triangular, and with certain hooks made in such a way that in wounding they could not be drawn from the wound without such laceration as to render the wound incurable._ _when the criminals were known to be at ponte milvio, in that very inn they were heard on their preliminary examinations by notaries and judges sent there expressly, and satisfactory confession was had._ _when the capture of the delinquents was known in rome, a countless throng of people rushed thither to see them, while all the criminals were tied to their horses and conducted to rome. it is told that franceschini, while making the journey, asked one of the officers how in the world the crime had ever been discovered. and when he was answered that his wife, whom they had found still living, had revealed it, he was so astounded that he was, as it were, deprived of his senses. about five o'clock in the evening they reached the prisons. a certain francesco pasquini, of the town of castello, and alessandro baldeschi of the same town, both of them years old, along with guido franceschini had been the slayers of the comparini. and gambassini and agostinelli were those who had stood guard at the street door._ _in the meantime there were exposed in san lorenzo, in lucina the bodies of the assassinated comparini, who were so disfigured, and especially the wife of franceschini, by wounds in the face that they were no longer recognisable._ the unfortunate francesca, when she had taken sacrament and had pardoned her murderers, and had made her own will, died, not yet having completed her seventeenth year. this was on the th, which was the day of the epiphany. she was able to justify herself against all the calumnies inflicted by her husband. _the surprise of the people at seeing the said bodies was great, because of the atrocity of the deed, which truly made them shudder_, seeing that two old septuagenarians and a young girl of years had so wretchedly perished. as the trial of the criminals advanced, there were many arguments made on the matter, laying stress on all the more aggravating circumstances which accompanied this horrible massacre. others also were made in the defence with much erudition, especially by the advocate of the poor, who was a certain monsignor spreti. he succeeded in delaying the sentence, because baldeschi made denial, even though "the cord" was administered to him twice, under which he swooned. finally he confessed, and the others did likewise. _they also revealed that they had planned to kill franceschini himself, and to rob him of his money, because he had not kept his word to pay them as soon as they left rome._ on february was seen _in the piazza del popolo a great platform with mannaia, and two great gallows, which had been built for the execution of the criminals. many stands were constructed for the accommodation of those curious to see such a terrible execution, and so great was the concourse of people that some windows brought as much as six dollars each. at the eighth hour [ a.m.] franceschini and his companions were informed of their death and were placed in the consorteria. there they were assisted by abate panciatichi and cardinal acciajoli, nor did they delay in preparing themselves to die well. at the th hour [ p.m.] the company of death and of pity arrived at the prisons. the condemned were made to go downstairs, and were placed upon separate carts to be drawn to the place of execution._ _the first to mount the cart was agostinelli, the second gambassini, the third pasquini, the fourth baldeschi, and the fifth franceschini, who showed more intrepidity and composure than the others, to the wonder of all._ _they left the prison and followed the pilgrims street, the street_ _of the governor, of pasquini, piazza navona, the pantheon, piazza colonna, and the corso._ _the first who was executed was agostinelli, the second gambassini, the third pasquini, the fourth baldeschi, and the last franceschini. when the last-named had mounted the platform, he asked pardon for his sins, and begged them to pray for his soul, adding that they should say a pater, an ave, and salve regina for him. when he had made the confessor announce that he was reconciled, he adjusted his neck upon mannaia and, with the name of jesus on his lips, he was beheaded. the head was then shown to the people by the executioner._ _franceschini was low of stature, thin and pallid, with prominent nose, black hair and a heavy beard, and was_ fifty years of age. _he wore the same garb as when he committed the crime--that is a coat of brown cloth, black shirt, a vest of goatshair, a white hat and cotton cap; clothed presumably as he had been when he had set out from arezzo._ the execution took place during the _pontificate of innocent xii._, in . trial and death of franceschini and his companions for the murder of comparini, his wife, and daughter which happened during the time of innocent xii. editorial note the following additional account of the franceschini murder case was discovered a few years ago in the royal casanatense library, rome (misc. ms. ), in a volume entitled _varii successi curiosi e degni di esser considerate_, containing thirteen pamphlets by various authors, most of them concerning famous criminal trials, from rome of the seventeenth century. the volume is in a hand of the early eighteenth century, and contains an endorsement to the effect that a copy was made from it in . the franceschini murder is the subject of the tenth narrative of the volume. internal evidences indicate that it was written somewhat later than the secondary source pamphlet, by one who has considerable knowledge of the crime and whose attitude of mind shows him to have been a priest. it presents a better story and a fuller account of the motives of the actors, especially those of abate paolo and violante, together with a number of additional matters of fact not contained in _the book_. it never fell in browning's way, and hence has no immediate source-relation to the poem, but it does prove in some cases the accuracy of browning's conjectures of unknown facts when definite data failed him. the pamphlet was printed in translation by w. hall griffin in the _monthly review_, november . the present version has been made by the editor from a transcript of the original italian executed by a friend in rome.--c.w.h. trial and death of franceschini and his companions for the murder of comparini, his wife, and daughter which happened during the time of innocent xii. the abate franceschini, born in arezzo, tuscany, of a family which was noble, but poor of estate, having the cleverness to advance his own fortunes, proceeded to the city of rome, and was admitted by cardinal lauria into his household as secretary of the embassy. his inherent mental aptness won for him the favour of the cardinal, who was held in great esteem in the sacred college by reason of his learning, and who stood so high that he might well have aspired to the papal chair. in this lucky juncture, abate paolo, wishing to take advantage of his good fortune, thought to provide a wife for his brother guido and to recoup his family fortunes by a rich dowry. guido had served cardinal nerli in the same capacity, as secretary of the embassy; but either because he had not the good luck or the ability of his brother he left that service. although paolo knew that the idle state of his brother would be hurtful to his claims of dowry, he did not cease aspiring to a very advantageous one, flattering himself that his own distinction might make up for the shortcomings of his brother. now guido had reached full maturity, was of weak temperament, ordinary in appearance, of a disposition more gloomy than pleasant, and, moreover, was of scant means. hence, unless abate paolo should use his own influence, he could have little expectation for guido. after having attempted several alliances of high rank, paolo fixed his thought on francesca pompilia, the daughter of pietro and violante comparini. as she was their only child, and as her parents were too far advanced in years to have other offspring, she would fall heir to a reversionary interest of , scudi; and he hoped that he could easily make the match, as the comparini were rather inferior to him in birth. a certain hairdresser frequented the home of the comparini with the familiarity admitted by those women who desire to make themselves appear more beautiful to their husbands' eyes than they are and which some husbands tolerate who rely too much upon the fidelity of their wives. paolo considered this woman to be the best means for aiding his designs for the marriage of guido, and the latter often went to her shop with the purpose of winning her confidence by odd jobs. when he had often turned the talk to the subject of taking a wife, she told him one day he might readily apply for the daughter of the comparini, for she had a suitable dowry, besides being heiress to a reversionary interest, and was of a small family connection, which were his very requirements. when through her efforts he had succeeded in achieving the marriage, it was understood he should reward her with scudi. the hairdresser lost no time in broaching the matter to violante, who, anxious for the advancement of her daughter and for the establishment of her own interests, agreed to speak of it to her husband, and, if the matter were as stated, to persuade him to effect it. violante spoke to her husband about it and he did not reject the proposal, provided that the vaunted riches of the franceschini were verified, but he said this would have to be given in a written statement attested by well-known and reliable persons. when the hairdresser had carried back this word to the franceschini, they sent a statement of their real estate in arezzo, with an income amounting to scudi, attested by persons well known to the comparini, and who confirmed it to them orally. abate paolo, fearing lest this fortune might escape him, gave them no time to change their minds, and in order to make the matter surer he desired to secure it by the hand of cardinal lauria, his patron, by whom he had the marriage agreement drawn up; for his eminence was pleased to show kindness to the advantage of a man whom he regarded with some favour. meanwhile comparini had become better informed of the rank and property of the franceschini and found them far different from the preceding account, both in rank and in property. therefore he had a warm dispute with his wife, who persisted in the marriage, and declared that he had been advised by persons envious of the good fortune of one or the other house, and who wished to hinder it, and that she was not shaken in her original desire; for she was very sure, from other truthful witnesses, that the franceschini were of the first rank of nobility of arezzo, and not of the second, as those had said, and that the property given in the list had been untampered with. but the more she warmed to the matter, the cooler became pietro; for being very diplomatic, if he could not gain, at least he wished not to lose by the marriage of his daughter. but what does not a man lose when he allows his wife to rule him? he loved her so tenderly that from the first day of their marriage he had constituted her the arbitress of his wishes. violante, nevertheless, fearing lest pietro, in a case of such importance, might be more influenced by reason than by flattery, could suffer no delay in making secure the reversionary interest which another house could claim if the comparini were without an heir; she therefore resolved to have the marriage performed without the knowledge of pietro. when she had secured the consent of the daughter, who was always obedient to her commands, and had made an appointment with guido, she conducted her, suitably clothed, one morning to san lorenzo, in lucina, and espoused the two. pietro felt the blow keenly, but being unable to find any remedy for it, he cloaked his anger with the show of being displeased at not having been present, and this displeasure would cease in him with the joy of the nuptial feast, which should be in their house. he assigned to his daughter as dowry twenty-six bonds, with future succession to the remainder. on the very same day, after talking of the advantages which would result to both houses from the union of their interests, they decided upon the removal of the comparini to arezzo, which followed in a few days, and with it the absolute administration of the property by guido. when they had reached arezzo the comparini were received by the mother and relatives of franceschini with all that show of love which is customary on such occasions. but very soon, from constant association, disturbances arose, and thence they passed to hostilities. the mother of guido, a proud, avaricious woman, who governed the household despotically, took to stinting it even in the necessary food. this moved the comparini to complaints, to which the franceschini first responded with insults and then with threats. this was a thing violante could not tolerate, for, being a woman, she had her own share of natural arrogance. so she began tormenting pietro, cursing the day when he had decided to move to arezzo, laying the blame on him for all that of which she had been the cause. and pietro, who was one of those men who let themselves be overcome by a couple of crocodile tears of their wives, instead of reproving her for the undertaking (although she had concluded the marriage against his wish and without his knowledge), entreated her affectionately to bear with patience the abuses, which would possibly cease when the franceschini saw them defended by their daughter. at that time [november , ] passed from this life to heaven cardinal lauria, a churchman of merit beyond all praise. then abate paolo was elected secretary in rome of the religious order of malta. at this the haughtiness of the franceschini increased so much that they considered it grand good fortune for the comparini to be considered their friends, not to say their relatives. violante being no longer able to live under the proud command of another woman, since she had been in the habit of domineering, as her husband had been subject to her wishes, so tormented him that she induced him to take up his residence in rome again. for this purpose the franceschini gave them a sum of money sufficient for the journey and for the most necessary furniture in the home. scarcely had they reached rome when, to the surprise of everybody, it was reported that pietro had dispatched a judicial warning, in which he set forth that francesca pompilia was not really his own daughter and that therefore he was not obliged to pay the dowry. he brought the attestation of violante his wife, who had declared that to check her husband's creditors in the matter of the trust fund and to enjoy the income of the bonds she had feigned to be pregnant and, that her husband might not discover the trick, she agreed with him that when she became pregnant they should abstain from association until after the birth of their child. and so, on the very day of this pretence, they took separate bedrooms; still further, by well-arranged clothes, she feigned the swelling of the womb, and by suitable drugs made pretence of nausea until her time was come. she then took advantage of a day when pietro was occupied in his lawsuits, to bring forth the pretended birth, which was well carried out by the sagacity of a midwife in the secret, who provided whatever was necessary. and that the house servant might not detect the trick, they sent him to the apothecary to secure certain medicines. at the same time the midwife went to get a little creature whom she had received the day before from a neighbour, who was already in the secret. when she had returned to the house she summoned a familiar friend of the comparini from a window. matters were so well arranged that when the woman arrived, there was nothing more to do than to make her believe what was not really so. and to trick more surely the thought of this neighbour, they feigned that when violante wished to pass from the bed to a chair, she fainted into the arms of the woman by reason of her pains, since the midwife could not run up in time. this unexpected act of pietro, which became known in rome immediately, was heard with less wonder than scorn. the just anger of the franceschini would have undertaken due vengeance if it had not been mitigated by the hope that, since pompilia was not the true and legitimate daughter of pietro and violante, the marriage would be annulled and guido's wounded reputation would be healed. but when he had taken counsel with several authorities and found they were of different opinions, he was unwilling to risk so doubtful an affair, in the promotion of which they would necessarily confess and presuppose that she was not the daughter of the comparini, and by this confession they would be prejudiced in their claims to the dowry. they opposed the judicial notice, and obtained for pompilia the continuance of her quasi-relation as daughter, together with a decree for the transfer of the dowry bonds. but pietro appealed to the signature of justice so trickily that the franceschini had the expense of the transfer, but not the enjoyment of the income, since they obtained from it not even a two months' payment. the unfortunate pompilia was the victim of the hatred of these two houses; for she was left alone in arezzo at the will of her husband, her mother-in-law, and her relatives, who were mortally offended at her parents, and she was hourly threatened with death. in so deplorable a state the courage even of a more mature woman would have failed, not to speak of that of a girl only sixteen years old. for she was innocent of the wiles of her mother and of the duplicity of her father and by her own good qualities she was worthy of tenderness rather than cruelty. the unhappy one suffered as best she could these tyrannies which were ever increasing, but despairing of all hope of peace, she often had recourse to the governor of the city, that he might interpose his authority with the franceschini. as this was of no avail, she threw herself at the feet of the bishop, who had guido come into his presence and who tried to reconcile him. but guido's anger increased all the more because of this public recourse, and he threatened pompilia with certain death if she should ever try it again. when the poor child saw every way to peace closed against her she appealed to canon conti, a relative of the franceschini, who was very well informed of her wretchedness because he visited the house, and she begged him to save her life, which was in continual peril. he was moved to pity, for he knew that she had no other remedy than flight. as he could not personally assist in this, lest he would have to bear the hatred of the entire family connection, he suggested to her that the very person for such an enterprise was the canon caponsacchi, his intimate friend and somewhat related to him by blood, whose courage was no less ready to meet danger than to overcome it. pompilia accepted the counsel of conti, who lost no time in opening the affair with caponsacchi. he at first showed some unwillingness, as he hesitated to carry away a wife from her husband, even with the sole purpose of conducting her to her own parents. but when he had been fully informed of the insufferable abuses of guido and his relatives his pity prevailed over all other considerations and he accepted the undertaking. pompilia, who was eager for this, tried to win him by letters and amorous verses, yet always keeping herself true to her marriage vows, as one may read in her letters. in some of these she praises the modesty of caponsacchi, in others she reproves him for having sent some octaves which were slightly reprehensible, and she urged him to keep unstained that nobility of which he boasted. on the day appointed for flight, with the assistance of canon conti, the two took their places in a carriage and travelled as fast as they could, without resting save when it was necessary to change horses. they arrived the second morning at dawn at castelnuovo, and, in spite of the fact that the host had assigned them a bed for repose, pompilia seated herself in a chair and caponsacchi went down to the stable to urge on the driver. when guido awoke after the flight of pompilia and perceived that she was not in bed, he arose in a fury, and, seeing the jewel-box open and minus the jewels and money, which it had contained, he surmised what had happened to him. accordingly, on a good horse, he sped along the roman road and overtook the fugitives at the abovesaid inn of castelnuovo an hour after their arrival. when pompilia saw him, with that courage which desperation may arouse even in the weakest spirits, she seized caponsacchi's sword which lay upon the table, unsheathed it, and thrust at his life, calling him betrayer and tyrant. guido, fearing lest her spirit no less than the valour of caponsacchi might bring his death rather than revenge, turned his horse and rushed to the authorities. he had the fugitives arrested and conveyed to the new prisons, where he entered charge of flight and adultery against them. the abate paolo who, as has been said, was the secretary of the religious order of malta in rome, made noisy recourse for his honour to the pope, and he put a petition before monsignor pallavicino, the governor, demanding that he declare caponsacchi the seducer of his sister-in-law, and both of them guilty of adultery, and that his brother for that reason was entitled to gain the entire dowry. legal proceedings were instituted against them according to the most rigorous forms of law, but no proof of guilt was found against caponsacchi and pompilia except the love-letters written at the time of the arranging of the flight, the undertaking of the flight itself, and the deposition of the driver. for the latter declared that he had sometimes seen, when he had turned back during the journey, that they were joined face to face, that is cheek to cheek, a matter which did not make full proof of fault, since the rough roads and the headlong speed of the journey jostling them about might have been the cause of it. wherefore the court deemed it prudent and just to sentence caponsacchi to three years' relegation in civita vecchia for his rashness in running away with a wife from her husband, even though the motive was pity. while the case of the franceschini against pompilia was on trial, pompilia was transported with their consent, as their prisoner, into the monastery of the scalette on the lungara, with the obligation that guido, her husband, should provide her food. there, after a little while, it was discovered that she was pregnant, and as it no longer comported with the reverence of that place that she should remain there, with the consent of abate paolo, who had power of attorney for his brother, monsignor the governor ordered that she should pass into the home of the comparini, her parents, under security of scudi to keep it as a secure prison; and he declared that guido's obligation for her food should cease the very day she left the monastery. this cause, in which the franceschini were not obliged to have hand for mere honour's sake, was seen to have its chief motive in selfishness. therefore there was not a company where the conduct of one or the other party was not censured. for this reason the religious order of malta gave secret intimation to abate paolo that he should resign his office. at the loss of this honourable post, rein was given to the evil tongues of his adversaries. this put abate paolo in such straits that, ashamed to meet his dearest friends, he decided to leave rome and to pass to a clime where information of the dishonour that so afflicted him would never come. when guido was informed of the departure of his brother and of the obligation resting on him of repairing the honour of his house, he thought that to go into voluntary exile, as his brother had done, would only prove the baseness of his own mind. for he had been justly charged with this, since at the time he had overtaken his wife with her abductor he had failed in that very place to take the vengeance which was demanded at his hands. in due time pompilia had given birth to a son, who was sent out of the house by the comparini to nurse. thereupon every one believed, and especially violante, that the ties of blood would move guido to a reconciliation with his wife. for in spite of their declaration that pompilia was not their daughter, the minds of the comparini might still be disposed to some reconciliation. but guido's thought was quite different, for he was continually stirred, even in the absence of abate paolo, to plot the removal from this world of the entire memory of his dishonour by the death of pompilia, pietro, and violante, and possibly of still others. guido had in his employ, in the country, a daring and wicked labourer [alessandro baldeschi] to whom he often exaggerated the shame which his wife and the comparini had brought upon his house. to him guido revealed that with his assistance he wished to purge with their blood the stain to his honour. the cut-throat straightway accepted and declared that, if there were need of other company, he had three or four friends for whom he would vouch. guido replied that he should take three bold and trusty ones to make sure against any possible resistance, and should use all care to secure them at the lowest possible price. when all had been agreed upon, and arms suitable for the affair had been prepared, guido, with his four companions in disguise, secretly took the road to rome. reaching the home of the comparini at eight o'clock in the evening, one of them knocked at the door, and when pietro responded, the murderer told him that he had a letter to give him which had been sent from civita vecchia by caponsacchi. when the women heard this they told pietro to have him come back again next morning, urging him not to open the door. but he was curious about the news from caponsacchi, and when the murderer replied that he could not come back in the morning, as he was obliged to leave that night, he opened the fatal door and thereby admitted his own death and that of violante and pompilia. guido in a transport of rage leaped in with two companions, leaving the others on guard. they first dealt the poor old man many blows, and deprived him of life before he could lift his voice. scarcely had the unfortunate women seen this when, transfixed with like wounds, they suffered the same fate. upon the unfortunate pompilia fell the blows of her husband, accompanied with countless insults, and after he had trampled her several times under foot and wounded her anew, not trusting his own fury, he told his companions to see if she were really dead. one of them lifted her by the hair and let her fall again, and assured guido that she was no longer alive. when this barbarous murder had been concluded and the money agreed upon had been paid to the cut-throats, guido wished to leave them, but they would not allow him to desert them for fear that one might kill another, as frequently happens for hiding such misdeeds. or else the murderers, while united with their leader, had agreed to kill guido as they thought he might have a large sum of money. hence they did not consent to his leaving them and they took the road toward arezzo together, which they agreed to make on foot, as they could not secure posthorses. from these repeated wounds pietro and violante were quite dead, but not pompilia, though her wounds were more numerous. for because of her innocence she was especially helped by the divine mercy, and she knew so well how to feign death that she deceived the murderers. when she saw that they were gone, with her dying breath she mustered sufficient strength of voice to make the neighbours hear her cries for help. they found her in the last extremities, and eagerly ministered first to her soul and then to her body. her wounds were so numerous and of such a nature that although they did not immediately kill her, they made her death certain. this occurred a few days later, to the sorrow of all those who assisted her and who had knowledge of this pitiable case. the fortitude with which she suffered the pains of her treatment caused as much wonder as her resignation to the divine will caused love. she not only did not blame the cruelty of her husband, but with fervent prayers she besought god to pardon him. the compassion of her assistants both for her soul and for her body i attest by the following sworn statement concerning not only her innocence, but the happy passage of her pure soul to heaven. [then follow the affidavits of fra celestino and others given in _the book_]. divine justice, which would not suffer so atrocious a deed to go unpunished, caused the criminals to be overtaken by the authorities at the break of dawn at an inn a few miles from rome. for when they had eaten a little, they went to sleep by the fire, fatigued by the journey and overcome with drowsiness. the police rushed violently in upon them and, pointing carbines at their breasts, assailed and bound them at once. they were straightway taken to the new prisons, and the governor apprised the pope of this barbarous murder and of the arrest of the guilty. he gave commands that, without delay and with all rigour, trial should be brought, this being a case which, by reason of the consequences which might arise from it, should be examined into with very special attention. far less torment than would seem to be necessary had to be applied to get the confession of the murderers and of guido, who more than the rest had stood by his denial. but at the sight of torment he had not the heart to resist longer and confessed fully, saying indeed that the crime had had no other motive than the reparation of his honour which had been so publicly offended. this was a matter which any common man would have undertaken, not to speak of himself, who was a gentleman; and if on his first examination he denied the truth of this, he had done so lest he might injure his companions, who had aided him in a deed worthy of all sympathy, because he had honour as his sole end. with the confession of guido and its ratification by the rest, the process was finished, and they were sentenced, the cut-throats to the gallows and guido to mannaia, a means of death conceded rather out of respect for his being in clerical orders than for any other reason. the advocate and procurator of the poor had written so ably in their defence on the point of honour that there is no memory of more learned arguments. but the features of the crime were so many (and all of them punishable with death) that they were overcome no less by their nature than by their number. among such features was the bearing of arms prohibited under capital penalty, the death of pietro and violante who were not accomplices in the flight of pompilia, the murder while a lawsuit was pending, and in their own home, which place the authorities had with the consent of guido assigned to pompilia as a secure prison. the many other weighty charges which displayed the great learning of the defenders were the just cause of the death of the accused. yet with the usual hope of all those who make confession of capital crime, guido flattered himself that he could save his life by reason of his honour. at the unexpected announcement he did not give up to such a frenzy as frequently follows in those who experience so terrible a disaster, but, as if stupefied, after a few minutes he heaved a deep sigh, accompanied by a few tears, which by their extraordinary size showed dying symptoms. he said: "i well feared a heavy sentence, but not that of death. my crime is great, but love of honour has never suffered me to perceive what it was until now that sentence has been passed, which i hold in such reverence that i wish to appeal only to god, to whom alone i turn for the only mercy. without his will i should never have reached this awful pass, which may be a comfort to me and not a source of bitterness, that i may gain by entire resignation to his will the merit of his pardon." and then he threw himself into the arms of the compassionate frati and showed such signs of true contrition that their prayers were accompanied by tears rather than by exhortations. his four accomplices did not submit themselves with the same readiness, for as they were of lower birth so were they less swayed by reason, which would render them impressible to the punishment they had merited. the oldest [baldeschi] and youngest [agostinelli] were the most obstinate, the one from having a heart hardened by so many years of evil life, and the other being all too sensitive to so harsh a punishment for a single crime, in the very flower of his youth, without ever having spilled a drop of blood, and with the sole fault of having been induced to stand as guard at a door through which guido had had to pass, to purge himself of the stains to his honour by the blood of his foes. as the hour of execution drew nearer, the stubbornness of these wretches so increased that the frati despaired of their repentance. at last the divine mercy, which works miracles when we least expect it, entered their hearts and gloriously demonstrated his omnipotence. they finally trusted in god, and the memory of those faults which had made them obstinate, and which were now illuminated by the divine grace that disposed them to penitence, fitted them for pardon. when these souls had been secured for god after such a hard contest, the execution passed from the new prisons at tor di nonna to the scaffold raised in the piazza del popolo in view of the gate and of the corso. in the midst was the block on a lofty scaffold, larger than usual and with steps made with particular care; on the two sides the gallows were placed at equal distances. in spite of the vastness of the piazza, not a single foot was left which had not been occupied by stands, which were covered with tapestry and other ornaments forming a theatre for festal celebrations rather than for a solemn tragedy. his four companions preceded guido, each of them in a separate cart, assisted by the devotion of the accustomed frati [the brotherhood of death], and followed by a countless concourse of people praying for a blessed departure, which in view of their contrite resignation seemed not at all doubtful and even a certain hope. rarely did guido franceschini turn his eyes from the crucifix, except when nature, overwearied by the steadfastness of his gaze, made him turn away his head but not his heart, which had been wholly given to his creator so that none was left for himself. when he had reached the piazza di pasquino, and the cart had stopped before the church of agonizzanti, where on days of public execution it is customary to offer the sacrament to the delinquents condemned to death and therewith to bless them, guido knelt and began to recite, in a voice quite audible to bystanders, certain verses of the _miserere_, and among them this, "hide thy face from my sins and blot out all mine iniquities." he accompanied this with such signs of sorrow and penitence that the people by their tears showed no less grief than the one condemned. with equal devotion his companions received the same blessing, but the behaviour of the youngest [agostinelli] was remarkable beyond belief, who beside himself with his love of heaven and of god, by his expressions which exceeded his own capacity, confounded the wisdom of his pious assistants. thence by the most densely populated streets they continued the journey to the piazza del popolo, where they all died, guido last, with those acts of contrition which their preparation had shown. as the youngest had displayed most blessed signs during life, so it pleased god that he met his death likewise, for at the moment the executioner did his work, he clasped between his breast and his hands the image of that crucifix whereby they had become certain of divine pardon. this assured the people of his salvation as his untimely death had aroused their pity. rome has never seen an execution with a greater concourse of people, nor does it remember a case on which there was such general talk as on this. some defended the comparini, because they had suffered abuse, others the franceschini as it was a matter of honour. but, on looking at the matter dispassionately, they were adjudged to be equally guilty, except that pompilia, who was entirely ignorant of the truth, was without blame; for she had consented to the marriage at the command of her mother without the knowledge of her father, and had fled from her husband for fear of death with which he had often unjustly threatened her. from trickery arose the union of these two houses, from the franceschini in frauds regarding property they did not possess, from the comparini by the pretended birth, or by this very pretence if the birth were real. the trick arose from greed of gain in pietro to secure the trust moneys for himself, and in the franceschini to minister to their own ease; so all was done contrary to laws both human and divine. hence a bad beginning was followed with a wretched ending, as has been told above. notes and comment . _title-page_ (p. ). the manuscript title-page of the _book_ is closely paraphrased by browning, _r.b._ . - , the word "position" being used as the equivalent of italian _posizione_. . _the index_ (p. ) (italian, _indice_) is a manuscript table of contents, evidently supplied by the original collector. . _a transcript of the sentence against pompilia_ (pp. - ) in the criminal courts of arezzo, dated february , (for ). parallel with the process of flight (_see_ note ) in rome, the franceschini family evidently instituted criminal proceedings in arezzo against the fugitive pompilia, charging her with theft and adultery. signor guillichini and the driver borsi were included in the action as accessory to the crime. the franceschini were able to secure the condemnation here which was not obtainable in rome. under security of this sentence, granted in december , guido could safely go on with the assassination of his wife, so far as tuscan law was concerned. the transcript in the _book_ is dated february , while the murder trial was at a crisis, and was probably sent to rome by signor cencini to assist guido in his peril. it is noteworthy that guido did not include caponsacchi in his accusation in arezzo. . _romana homicidiorum._ the frequently repeated designation of the case--_romana causa homicidiorum_--roman trial for murders. . _hyacinthus de archangelis_ (italian, _giacinto arcangeli_), _procurator pauperum_, was guido's chief defender, not an attorney employed privately by the defendant, but an official states' attorney for the defence. the roman court procedure in all cases assumed the right and obligation of the state to conduct both sides of a criminal case. . _desiderius spretus, advocatus pauperum_, was the co-defender of the accused. humphrey's _urbs et orbis_, p. , makes plain the respective functions of the two attorneys: "the advocate is a man skilled in civil and canon law, who defends causes in writing or by word of mouth, on the point of law, setting before the judges that which is true in law, or best founded in law, or the principles of law which ought to be applied in a particular case. his is the scientific part of the cause, and he speaks only to the point of law. matters of fact are to be established by the procurators, and it is upon these established facts that the advocate develops his judicial conclusions." . _joannes baptista bottinius, fisci et cam. apost. advoc._ (advocate of the fisc, or treasury, and of the reverend apostolic chamber), the chief prosecutor of the criminals, with functions equivalent to those of the prosecuting or states attorney in the common law. browning continually used the clipt form, fisc. . _franciscus de gambis, procurator fisci_, was the coadjutor in the prosecution, opening the case in pamphlet , but thereafter playing little part in the case. . _antonius lamparellus, procurator charitatis_, the attorney who, in pamphlet , defended the memory of the dead pompilia for her heir and against both the franceschini family and the nunnery of convertites (_see_ note ), both of whom were accusing her memory to gain her estate. this trial in the criminal court of the governor, took place between the death of guido, february , and may , . the decision "for absolution" was made _definitive_ by the decree of court, september , (pamphlet ). . _the nunnery of the convertites._ within a month after the death of pompilia the nunnery of _sta. maria maddalena delle convertite al corso_ (founded _pro mulieribus ab inhonesta vita ad honestam se convertentibus_) laid claim to the whole of pompilia's property on the ground of their privilege of receiving the property of women of evil life who died in rome. . _most illustrious and most reverend lord governor._ all the arguments and the summaries of evidence in the murder case are addressed to the governor of rome, but the vice-governor, judge venturini, seems to have presided in his stead. . the title and imprint on the right half of the final page of each of these official pamphlets was evidently for convenience in filing the documents when folded into bundles. the imprint _typis rev. cam. apost._ (type of the reverend apostolic chamber), is the official imprint of the papal press. . _the deposition of angelica_ (pp. - ). angelica, a domestic in the franceschini home during january , while the comparini were living in arezzo with their son-in-law, was probably carried back to rome by the comparini on their return to rome that she might serve as a witness to the poverty and parsimony of guido. she makes her affidavit at rome, june , , evidently for use in the suit brought by comparini to recover the dowry paid with pompilia. how far it is true and how far it is the prejudiced and bitter word of a resentful servant who had been kicked out of doors, we cannot say. but its publication through court procedure must have been bitterly humiliating to the franceschini. what was worse, the comparini probably used this as a part of the slanderous stories they took pains to print and circulate in rome (p. ). . _diverse attestations_ (p. ). these attestations, made june , , nearly seven weeks after the arrest of pompilia at castelnuovo, were evidently secured by her lawyers for her defence in the process of flight (note ). . _the letters of signori romani and albergotti_ are undated, but were probably written soon after the departure of the comparini from arezzo in . . _pompilia's letter to abate paolo_ (pp. - ). the much discussed letter of pompilia to abate paolo, dated june , , full of calumniation of her parents, who had left arezzo only three months before, could not have been written by the fourteen-year-old girl voluntarily. guido must have composed it as a counter attack on the comparini, who were bringing suit against him at rome, and were loading him with shame. . _the attestations of fra celestino and others_ (pp. - ), dated january , only four days after the death of pompilia, was given at the instance of pompilia's executor, tighetti. it is a most important piece of evidence, and is cited repeatedly during the trial. its genuineness and sincerity are beyond question, and browning gained from it most of his faith in the innocence and saintly patience of pompilia. . _process of flight._ after the arrest of pompilia and caponsacchi at castelnuovo they were taken to rome and lodged in prison. they were soon brought to trial on the criminal charge of adulterous elopement. the case seems to have been in the same court which tried guido for murder eight months later, and probably continued in a desultory fashion all summer. in this case both of the accused made the deposition later included in the _book_. in this trial also, guido tried to introduce the testimony of the harlot-servant, maria margherita, and the love-letters. the case was never decided so far as pompilia was concerned. . _the deposition of pompilia_ (pp. - ), dated may , , two weeks after her arrest at castelnuovo, giving the causes of her flight from her husband's home, was made by pompilia for her own defence in the process of flight. the marginal comments, adverse to her, are, of course, the prejudiced comments of guido's lawyers. . _the deposition of caponsacchi_ (pp. - ), made about the same time and under the same circumstances for the process of flight, was reintroduced as evidence in the murder case, but there is no reason to think that caponsacchi was brought into the latter case in any other way. . _the love-letters_ (pp. - ). these letters are one of the most elaborately discussed pieces of evidence in the _book_. guido claimed to have found them at the inn of castelnuovo after the arrest of the fugitives, and he offered them in court during the process of flight, as a proof of adultery in his wife, but they were thrown out by the court. their conventional fine-letter-writing, their studied innuendo and finesse, were quite beyond the capacity of an illiterate girl like pompilia. they were probably composed by guido, and if so, they prove that he was basely scheming to drive his wife into dishonourable flight that he might disgrace her and cast her off. the eighteenth letter was specifically denied by caponsacchi in his cross-examination. . _the sentence of relegation_ (p. ) for three years in civita vecchia was decreed against caponsacchi at the close of the process of flight in september, . it is commensurate with priestly indiscretion rather than with crime. . _the account of fact_ (pamphlet ). this anonymous italian pamphlet is not at all a part of the official record of the murder case. it has no imprint and is in entirely different face of type, and must have been printed privately for circulation outside the courts. while much less technical and formal than the arguments of the lawyers, and much more studious of popular effects, it slips back repeatedly into the thought and the language of arcangeli, the defender of guido. it probably suggested half-rome in _the ring and the book_. . _the response_ (pamphlet ) is a highly rhetorical, but effective, retort to the anonymous writer. it was written during the later stage of the murder trial, and was probably the work of signor bottini. it likewise is without imprint and signature, but may have been broadly scattered throughout rome. . "_to keep to this home of pietro ... as a prison_," _domus pro carcere_ (p. ). for a month after the sentence against caponsacchi, pompilia was kept prisoner in the refuge called the _scalette_--a provision for her safekeeping, not a punishment. on october , she was permitted to give bond to keep the home of her foster parents, the comparini, as a prison, _domus pro carcere_, sentence against her being suspended. . _the scalette._ the _conservatorio di s. croce della penitenza alla lungara_ was an institution for penitent women, founded , and popularly called _scalette_, because of the two adjoining stairways. browning confuses this institution with the convertites (note ). . _baptismal record of pompilia_ (p. ). this note, taken from the parish record of san lorenzo, in lucina, enables browning to make the exact statement of pompilia's age and her full name, as given in the opening lines of her monologue. . _pompilia's letter_ (p. ) to her foster parents, written from prison at castelnuovo only two days after her arrest, is her plea to them for assistance. it was probably cited as evidence in the process of flight. . _the will of pietro comparini_ (pp. - ), evidently drawn up after he had learned pompilia was not his own daughter, and before her return to rome, aimed to prevent her being disinherited for that reason. its personal tone is good, and it is almost the only first-hand evidence of the character of pietro to be found in the _book_. . _power of attorney_ (p. ). under date of october , , guido grants full power of attorney to abate paolo, who was representing him in the lawsuits in rome and in other matters of business. . _arcangeli's manuscript letter_ (pp. - ). on february , , only a few hours after the execution of guido, signor arcangeli, his legal defender, announces the end of the case to signor cencini, the florentine lawyer who collected the _book_, and who seems to have been professionally related to the franceschini family, as he had sent certain "proofs" to assist the cause of guido, probably including the report of the criminal condemnation of pompilia in the tuscan courts. (_see_ note ). this letter is reproduced by browning, _r. b._ xii. - . . _the other letters_ (pp. - ), written on the same day and to signor cencini, give a few additional details. the writers seem to have been professionally associated with the franceschini family. . _francesca pompilia_, foster daughter of the comparini, _b._ july , ; was married to guido franceschini, december ; fled from her husband's home in arezzo, april , ; arrested at castelnuovo, may ; wrote to her foster parents from her prison at castelnuovo, may ; made deposition in rome concerning her flight, may ; was on trial for flight and adultery during the summer of ; was placed in the convent of the _scalette_, september ; removed to the home of the comparini as prison, october , ; gave birth to a son, gaetano, december , ; was assassinated january , ; died january . . _giuseppe maria caponsacchi_, _b._ may , , was invested canon of the church of santa maria della pieve, november , , and resigned "of his own accord," may , . he is referred to in the _book_ as a man of courage, and his words as he faced guido at castelnuovo are significant: "i am a man, and have done what i have that i might save your wife from death." his affidavit is convincingly straightforward, in spite of certain discrepancies with pompilia's statements, and there is evident moral indignation in his replies under cross-examination. his participation in the dangerous flight in mere amorous intrigue seems unbelievably foolish, and could hardly have been carried through save on the motive he assigns, courageous "christian compassion." in september he went to civita vecchia under sentence of three years' relegation. . _canon conti_, called the "mediator in the flight," was brother of count aldobrandini, who had married guido's sister, and conti is accordingly spoken of as a "relative and frequenter of the franceschini home." he had been invested canon of the pieve, august , . he must have been fully informed of pompilia's sufferings, and to him she turned at last for help. deeming it improper for himself to afford her relief, he urged his friend caponsacchi to accompany her. no criminal procedure was instituted against him in arezzo when pompilia and guillichini were accused. he died january , and the second anonymous pamphleteer hints that this was due to foul play. . _guido franceschini_, _b._ january , , the youngest son of an impoverished, second-rate, noble family of arezzo, had sought his fortunes in rome, where he became secretary of cardinal nerli. he dropped out of this service in middle life, with hardly a dollar in his pocket, and planned to recoup his fortunes by marriage with pompilia, the heiress of the well-to-do comparini. after the marriage in december , the comparini accompanied him back to arezzo. he seems to have been unattractive and saturnine, and later on proved himself both crafty and brutal. . _abate paolo franceschini_, _b._ october , , the older, shrewder, and more able brother of guido, was more successful in seeking his fortunes in the official world of rome. he became secretary of the powerful cardinal lauria, and on the death of the latter, november , , obtained the lucrative office of secretary of the order of st. john of malta. he assisted guido in effecting the marriage with pompilia, and was his active agent in rome during the lawsuits which followed. in he lost his secretaryship because of the ignominy which had come upon him in guido's shameful troubles, and left rome, possibly, as he is accused by the second anonymous pamphleteer, to assist in planning the murder of the comparini. . _honoris causa._ as the fact of the murders by guido and his cut-throats was subject to no dispute, the whole law case turns on the question whether these murders had been _for the sake of honour_, the ever repeated plea of the unwritten law for the right of the husband to slay a wife sinning against her wifehood. the lawyer's devote themselves to ascertaining the limitations and privileges of this plea. . _incontinenti, ex intervallo._ there is much argument on the justification for honour's sake in murder done _immediately_ after the insult, or _after an interval_ of time has elapsed. in the latter case, the murder becomes premeditated, and is not justifiable on the ground of excusable heat of passion at an insult. . _the aggravating circumstances._ the prosecution makes much of the attendant criminal circumstances which surrounded the main crime of murder. these are first, the assembling of a band of armed men, constituting the crime of rebellion; second, the murder of a prisoner while under the care of the courts, pompilia being technically a prisoner detained in the process of flight; third, the assault upon opponents in a pending lawsuit, the comparini then being at law with guido; fourth, the violent breaking into a private home; fifth, the commission of crime under cover of disguise; sixth, the use of certain types of barbarous weapon, the very possession of which was a capital offence. the first three of these were _laesa majestas_, criminal insult to the majesty of the law. . _san lorenzo in lucina._ this church in the heart of rome just off the corso, and not very far from the home of the comparini at the corner of via vittoria, and strada paolina, was evidently the parish church of the comparini, as both the birth and death of pompilia are entered in its register. . _castelnuovo._ a village of but a few houses, fifteen miles north of rome. the inn and posthouse where pompilia and caponsacchi were overtaken by guido thus became one of the most important scenes in the tragedy. . _torture of the vigil._ guido and his companions were tortured thus, to get fuller testimony from them. this torture consisted originally in merely keeping the victim awake until he told his crime. later on his confession was accelerated by auxiliary devices for intensifying the suffering of the subject. . browning has taken the peroration used in the first lawyer's monologue, _r. b._ viii. - , directly from the peroration of arcangeli in pamphlet , p. . . the description of the execution as given in _r. b._ xii. _et seq._, is taken from the additional italian pamphlet, pp. - . . in like manner _r. b._ viii. - , is closely drawn from the _book_, pp. - , with an interpolation in lines - from page . more than fifty of such word to word borrowings from the _book_ are made in this monologue. minute of the definite order of events in the case july , . pompilia born. (note ). december (?) . pompilia married to guido franceschini. december . the comparini accompany the bride to arezzo. four months residence together in arezzo. domestic broils in arezzo, january and february, . march . the comparini return to rome. april or may . violante reveals base parentage of pompilia. june , . pompilia's letter to abate paolo. (note ). june , . affidavit of angelica. (note ). summer of . pietro comparini prosecutes suit to recover dowry. august , . letter of the governor to abate paolo. september , . letter of the bishop of arezzo to abate paolo. march . pompilia seeks aid of confessor romano. april, . seeks aid of guillichini, conti, and caponsacchi. april ( a.m.). pompilia flees. april (in the evening). fugitives arrive at castelnuovo. may (early in the morning). guido overtakes fugitives and has them arrested. may . pompilia writes from the prison of castelnuovo. may . pompilia makes her deposition. (note ). may . pompilia is further cross-examined. june , . certain persons in arezzo make affidavit in pompilia's behalf. (note ). summer of . the process of flight. (note ). september , . caponsacchi sentenced to relegation. (note ). october . pompilia permitted to return home under bond. (note ). fall of . pompilia institutes suit for divorce. fall of . the franceschini push a criminal suit against pompilia in the criminal courts of arezzo. (note ). fall of . abate paolo loses his secretaryship of the order of st. john. december , . pompilia gives birth to a son. december , . guido and his cut-throats arrive in rome. january , . guido murders his wife and the comparini. january . guido and his associates arrested and imprisoned. january . pompilia dies. january . fra celestino makes affidavit. (note ). january . the murder trial begins. january . conti dies in arezzo. january . sta. maria maddalena delle convertite institutes suit to gain pompilia's estate. (note ). end of january. the torture of the vigil. (note ). february . the second stage of the murder trial. february . certificate of the baptismal record of pompilia obtained. (note ). february . certificate of the tuscan criminal prosecution of pompilia obtained. (note ). february . guido declared guilty, but a stay of sentence granted. february . execution set for following day. the pope overrules delay. february , . the murderers are executed. spring of . the franceschini bring suit to recover pompilia's property. may . the criminal court decides in favour of pompilia's executor. september - , . final decree of court, utterly clearing pompilia's reputation. browning uses all the above chronology with scrupulous accuracy, save when, for good artistic reasons, he changes the flight from april to the rd, st. george's day. minute of the personal names found in the book and pamphlet and used by browning in his poem franceschini, signor guido. (note ). franceschini, abate paolo. (note ). franceschini, canon girolamo, _b._ august , , brother of guido. franceschini, donna beatrice, - , mother of guido. franceschini, count tommaso, father of guido. comparini, signor pietro, father of pompilia. comparini, violante, mother of pompilia. comparini, pompilia. (note ). canon conti. (note ). canon giuseppe caponsacchi. (note ). signor guillichini, helper in the flight. borsi, the driver. signor marzi-medici, governor of arezzo. bishop of arezzo, giovanni matteo marchetti, - . the confessor romano. maria margherita contenti, servant in the franceschini home. monna baldi (albergotti). cardinal panciatichi } cardinal acciajuoli } guido's confessors on the eve of execution. signor tighetti, trustee of pompilia's estate. the babe, gaetano. fra celestino, confessor of the dying pompilia. signor giacinto arcangeli. (note ). signor bottini. (note ). signor spreti. (note ). signor cencini, a florentine lawyer interested in the murder trials. alessandro baldeschi } domenico gambassini } the assassins. francesco pasquini } biagio agostinelli } curate ottoboni, curate at san lorenzo, in lucina. judge tommati, auditor curiae. judge molines, of the ruota. marco antonio venturini, vice-governor, presiding in the murder case.