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Guido and the guilty mind: Mens rea and actus reus in Inferno 27.

One of the most fundamental tenets of criminal law (at least in common law jurisdictions) is that there are two essential elements to a crime: mens rea (a guilty mind) and actus reus (a guilty act). Accordingly, one is not guilty of a crime unless culpable in both thought and action.

This seems logical enough and is central to common law's fundamentals of justice, but establishing the existence of both is considerably more difficult in practice. Establishing that the most likely suspect is the person who has committed the act in question has always presented particular challenges. While advances in science and investigative techniques have made this part of the prosecution somewhat more reliable over the centuries, eyewitness testimony, erosion of physical evidence, etc. still continue to present a level of uncertainty in a large number of trials. Despite such difficulties, establishing "whodunnit" and what was done is ultimately a question of fact.

Proving a guilty mind, that is, determining the intent of the accused, is a little bit trickier. Numerous questions come to mind. Did the accused mean to commit the act with which he or she is charged? Did the accused know that the act was wrong and understand its consequences? Did the accused intend to commit the act with which he or she is charged? While these appear to be questions of fact, they are ultimately unknowable as we can rely only on external evidence and to what it points. In the end, as it stands at present, one can never really know what was in someone's mind or, indeed, in someone's heart.

I recall the conundrum being presented in my first year of law school. Our Criminal Law professor presented us with a case in which the accused had been charged with sexual assault. The accused's evidence was that he believed the (unconscious) victim had passed out from drinking an excessive amount of alcohol. As it turns out the woman was, in fact, dead. The problem was immediately evident to the prosecuting attorney. The intention (mens red) pointed to rape, but the guilty act (actus reus) was characterized as "offering an indignity to a corpse." The intent and the act did not match. Neither act had both elements; mens rea and actus reus. Was the accused convicted? Should he have been? Most of us agreed that the accused had done something very wrong but what would that do to the Criminal Code and hundreds of years of precedent if we were to convict someone of an act that they did not intend to commit? Equally problematic was the question of whether it was appropriate to attribute intent to an accused, knowing that such intent was not present. In the absence of a guilty mind, can there be guilt?

To a certain extent, this is the issue with which readers are presented when Dante encounters Guido Da Montefeltro in Inferno 27. We know that Guido has been condemned for something--he is, after all, in hell--but the nature of his crime or sin is not immediately clear.

Indeed, the entire sequence that takes Dante through the eighth bolgia of the eighth circle raises multiple questions of crime and punishment. If we look, for example, at Natalino Sapegno's diagram, we see the eighth circle is labeled "Frodolenti contro chi non si fida" (Alighieri, 1991: xxiv), thus asserting, as does Dante, that fraud against someone who trusts you is worse than fraud against someone who does not trust you (the latter of which will be punished in the ninth circle). Sapegno, like the many scholars who link the severity of the sin and the order in which it is punished in the Inferno, clearly senses that fraud and fraudulent behavior are linked to faith, good or bad, and that defrauding those who trust you is worse than defrauding those who do not.

Yet this distinction is not a tidy one and surely cannot be applied evenly to all of the various kinds of fraud that Sapegno identifies in the eighth circle. In legal terminology, the distinction that Sapegno's label makes is between those who commit fraud against those to whom they owe no fiduciary duty (eighth circle), and those who do so against those to whom they do owe a fiduciary duty (ninth circle). While the distinction may be worthwhile (and that is an entirely different debate), Dante's treatment of the various frodolenti punished in the eighth and ninth circles is not commensurate with this distinction. (1) Characterizing the simoniaci (eighth circle, third bolgia) as those who have committed fraud against those who do not trust them seems somewhat artificial. Surely the Popes and other clergy have been entrusted with the holy offices and responsibilities with which they are charged and, more to the point, their flock are expected to trust them. Similarly, barattieri (eighth circle, fifth bolgia) have been entrusted with certain obligations, powers, and responsibilities by those who have elected or appointed them. Again, in theory, the constituents trust them or they would not have appointed or elected them in the first place. Moreover, if this distinction is accepted, we must conclude that Dante is suggesting that Ulysses owed no fiduciary duty towards the very men who looked to him as a leader. It also means that Dante is suggesting that Ulysses's men did not trust him. Certainly, that cannot be the case, but if it is not, if the men did not trust him, if Ulysses owed no fiduciary duty to his men, then what is Ulysses's crime or sin?

Discussion of Ulysses' suitability for the eighth bolgia is further complicated by Dante's avoidance of this pit's label until the end of the next canto. Only at the end of Inferno 27 does a devil, a black cherub, cited in Guido da Montefeltro's account of the dramatic altercation that occurred at his death, clarify that Guido is located in the eighth bolgia "perche diede '1 consiglio frodolente" ("because the counsel that he gave was fraudulent"; Inf. 27:116). Teodolinda Barolini (2018a), for example, notes that while the encounter with Ulysses belongs to the eighth bolgia, Dante does not tell us that the eighth bolgia houses fraudulent counselors until the end of Inferno 21. (2)

Scholars have famously grappled with the question of Ulysses's last voyage, concluding for the most part that Ulysses is being punished for some kind of "trapassar" for going beyond what he was supposed to. In Barolini's opinion this ambiguity, i.e. the focus on Ulysses's last adventure, the one that leads to his perdition, is deliberate. Similarly, this audacity on the part of Ulysses, in the opinions of multiple scholars, links Ulysses to Dante, so that Ulysses's story functions as a type of freno, akin to those found in Purgatorio. Ulysses's misadventure serves to keep the poet on the iter laid for him by divine will; it dissuades him from blazing his own trail and thus risking becoming lost again. That Ulysses is referred to in all three canticles suggests that the Greek sailor functions as a kind of alter ego or foil for Dante who, both as pilgrim and poet, also risks going too far.

This is all well and good but it does not address the obvious (though rarely mentioned) fact that Ulysses is not offering fraudulent counsel to his men. Nor, to use the distinction made by David Thompson (1974), is he counseling them to use fraud. Indeed, Ulysses tells us that he laid it out plain and straight to his men in the so-called "orazion picciola" (Inf. 26:122). He told them that they were sailing into the unknown. It is this sense of adventure that makes this one last "kick at the can" so attractive to a group of retirees. When Ulysses urges them to find a new world, reminding them that they are more than mere beasts, he is not lying. Rather, it would appear that Ulysses has made full disclosure of the risks involved.

Here again, in an attempt to unravel this part of the Ulysses conundrum, scholars have listed the various feats of ingegno for which Ulysses was famous and suggested that these may be the real source of his punishment. I offer here a different, and perhaps more helpful, explanation. Let us remember that Dante, from the very start of the canto, has been in danger of falling head over heels. (3) We have seen this before; Dante entranced by a quivering pair of sinners. (4) In Inferno V, the reader has already watched as Dante, drawn in by Francesca's story, became so overcome with emotion that he "fell, as a dead body falls." (5) This time Virgil intervenes almost immediately and warns Dante not to trust the Greek.

We should remember at this point that Ulysses owes no fiduciary duty to the pilgrim. Certainly, the pilgrim has no reason to trust Ulysses; he is in hell after all. Moreover, Ulysses owes no fiduciary duty to the reader, whose presence Dante frequently acknowledges. Similarly, the reader has no reason to trust a condemned soul whose story, like that of so many of Dante's sinners, cannot help but be self-serving. Why then would the reader assume that Ulysses's story, his tale of bold and honest leadership, heroism and perseverance, is the truth? All other evidence suggests that Ulysses has frequently exploited his own men for his own selfish experience. It is not a coincidence that the Ulysses episode that Dante includes in Purgatorio involves the siren, thus reminding the reader of how Ulysses had his men stuff their own ears with wax, seemingly saving them, but really for no reason other than to allow Ulysses to hear the song while avoiding personal danger. Similarly, when Dante looks down from heaven and sees Ulysses still flailing around on his way to hell, it is clear that he is going nowhere. Thus the folly of Ulysses's journey, his "folle volo," is linked to the equally moribund "folle amor" of Paolo and Francesca.

If we follow this argument to its logical conclusion then we can conclude that Ulysses, in telling his story, may very well be attempting to commit fraud; in this case, against the pilgrim to whom he owes no fiduciary duty and against the eventual reader, or for that matter to whomever else Dante may repeat the story. The counsel that Ulysses offers Dante, then, if it is indeed the story he told his sailors (and that remains open to debate), is fraudulent. It may offer transcendence but it delivers transgression. It delivers a humanmade and therefore destructible boat, not a saving ark. It disguises oars, mere pieces of wood, as wings, offering a facsimile instead of truth, a means of transport that may approach Mount Purgatory but, unlike the wings of the "angelo nocchiero" (Purg. 2:1-51), cannot deliver the repentant to its shores. In the next canto, in Inferno 27, Guido's "blabbering," as Anna Hatcher (1970: 111) calls it, exposes Ulysses as a fraudulent counselor, despite his attempts to paint himself as a hero.

It is in this context that we must consider Guido's story. As was the case with the story of Ulysses, Guido's tale has engendered much scholarly examination and debate. Although the canto focuses on a specific incident, i.e. Boniface's destruction of the Colonna stronghold at Palestrina, Guido's story is linked to Ulysses's not only by their location in the same bolgia but also by the nautical imagery that brings to mind Ulysses's own return from retirement. (6) Scholars, such as Lawrence V Ryan (1977), have examined this link and posited that the relationship between the two has deeper repercussions within the greater framework of the Commedia.

To wit, as was the case with Ulysses's "fraudulent" counsel, it is difficult to pinpoint precisely to whom Guido owed or did not owe a fiduciary duty. Given that Guido is condemned to the circle of sinners who defrauded those to whom they owed no fiduciary duty, the question of whom he defrauded is somewhat complicated. The most obvious trust relationship in the whole dirty business is, of course, between Boniface and Guido who seemingly trusted each other. While Boniface, as Pope, had a fiduciary duty to his entire flock, including the Colonna with whom he broke faith, it is doubtful, however, that the Colonna trusted Boniface at all. The bitter relationship and bad blood between the Colonna and the Caetani Pope suggest that the Colonna had no faith in the pontiff. (7) It is not, therefore, insignificant that Boniface is not punished in this bolgia. At most, Guido (a former Ghibelline) was complicit in this fraud, but if so, then it was a fraud against another Ghibelline family, one that had no obvious reason to distrust him. So here we are once again faced with a charge of fraudulent counsel against those to whom one owes no fiduciary duty and with no evident actus reus to support the charge.

There is also the question of mens rea. As we shall see, Guido maintains that any guilty intent or guilt he may have had has been erased by Boniface, even if in advance of the act. (8)1 would argue that Guido is acutely aware of the legal issues at stake and uses his conversation with Dante as an opportunity to address them. While some scholars have noted Guido's stated belief that his story will not be heard outside of hell, it is hard to imagine that Guido has failed to see that Dante's mere presence is proof that stories can return to the above. I agree, and would argue that given Guido's alleged cleverness, (9) he is quite aware that Dante will return to the world of the living. Just as Francesca was equally aware of that likelihood, Guido, in my opinion, is relying on Dante's return as a means of pleading his case, or rather, arguing his appeal from what he would have us believe is a miscarriage of justice. Guido's success in this regard, however, depends upon him making Dante, who does not trust him, an unwitting advocate. By feigning his belief that the story will go no further, Guido hopes to convince Dante of its truth. Guido clearly counts on Dante being oblivious to the fact that the encounter is taking place first in hell and secondly in a circle full of condemned frauds. It is a slim chance, but the only one Guido appears to have.

The story, of course, is self-serving. It condemns Boniface as the person who pressured him and offers several possible grounds for appeal, but does so only obliquely, for it would not do to have Guido look overly anxious to be exonerated. Guido must handle Dante carefully and gain his trust if he is to get anywhere with his appeal from the sentence.

If we continue to examine Guido's tale, working on the assumption that it is intended as an appeal, then we can see that he highlights several key points to argue that errors of both law and fact have been made in the heavenly court's decision to convict.

Guido tells us that he had converted from his evil ways but was later induced by Boniface, notwithstanding his vows as a Franciscan, to return to his former self, with Boniface promising him absolution in advance. (10) Guido, the aged warrior, then offered Boniface advice on how to wreak the ultimate destruction of the Colonna stronghold at Palestrina.

Things, we hear, did not go quite as planned or promised, as Guido recounts how a black cherub presented the legal argument that robbed Guido of his place in heaven. It was, and I would underline this, the devil's advocate who carried the day by denying the Pope's ability to absolve Guido of a sin for which he had not repented. (11)

Let us reconsider this for a moment. Guido is snatched away from St Francis on the basis of a legal argument delivered by none other than the devil's minion whose logic defies and annuls papal power acquired through apostolic succession, to "loose in heaven" what is loosed on earth. (12)

Clearly, Guido would have us believe the black cherub misunderstood who had granted the absolution. In the alternative, if the cherub did know it was Boniface who absolved Guido, the cherub's reliance on the fact that a sinner must repent in order to be pardoned clearly misunderstood the breadth of papal authority as manifested in the two keys. Guido's argument, then, boils down to this--the cherub was wrong. Guido's conscience was clear, he had no mens rea; it had been removed by the successor of Peter. Guido is, he would argue, not guilty.

Guido's appeal does not rest there, however. He pulls out all the stops, as it were, and insinuates that Boniface threatened him, thus alleging that he was acting under duress. This alone would provide Guido with a mitigation of his guilt, since canon law absolves one of acts committed under coercion. (13) In Guido's retelling, even St Francis understood this or he would not have come for the converted warlord.

Finally, Guido adds a dose of remorse, or at least a reasonable facsimile thereof. Of course, the remorse he expresses is regret at having trusted someone who, if the cherub is right (although how could he be? He is, after all, a demon), was untrustworthy. But Guido lobs this remorse as a kind of last chance "Hail Mary" pass in hopes that it will hit the mark.

When faced with such an argument, who could not help but repeal the sentence? Indeed, Dante gives us several examples of how a moment of remorse can save even the most wicked of souls. Ironically, Guido's own son Bonconte is saved by a final "Hail Mary." (14) Yet Guido languishes in hell. Why does Guido's argument then not work? The simplest answer is that his story is not credible. Or, as Joseph Markulin (1982: 26) puts it, "Guido is a liar."

Let us consider the veracity of his testimony. Historians, for example, are doubtful that the exchange between Guido and Boniface even happened (Tosti, 1911: 511). Further, even if the conversation happened, it is doubtful that it was the direct cause of the ultimate destruction of Palestrina. Although Villani (1906: 318) mentions the incident in his chronicle, the account is somewhat contemporaneous with the writing of the Inferno and it is unclear whether Dante was relying on Villani or vice versa. Moreover, it seems hardly likely that Boniface would have needed Guido's counsel to come up with the scheme that drew the Colonna out of their stronghold. (15) Guido is, in all likelihood, lying. He, however, relies here on Dante's own distrust of Boniface and uses Dante's bias to enhance the credibility of his account of the events.

Let us not forget that, like Ulysses's testimony regarding his last hurrah, the only person who attests to the truth of the sinner's story is the sinner himself. The entire episode may have been fabricated in order to create this most elaborate of frauds. Guido, as his own lawyer, has indeed become a fraudulent counselor.

If, however, it did in fact happen as Guido recounts it, what are we to make of his condemnation? If Dante intends his readers to accept that "loosing on earth" only works if the sinners are truly repentant, then what is the point of the two keys? If humans determine whether or not they are excommunicated, then what is the point of the Pope's power to excommunicate? And finally, if a Pope can put an entire community under interdict then how does the required coexistence of mens rea and actus reus feature into spiritual law? As Ronald Herzman (2005: 48) has pointed out, this entire episode serves to undermine Boniface's authority and, in particular, his 1302 bull Unam Sanctam.

The fact that in Dante's hell there are sinners whose spirits have been condemned but whose bodies continue to roam the earth suggests very strongly that Dante does not require that the body and mind be at one in the commission of sin. We have seen this distinction at play in the exoneration that St Augustine in the City of God grants the righteous widows, those victims of rape whose minds did not consent to the act in which their bodies were engaged. (16) But to use this separation to deny redemption is rather novel.

Scholars such as Teodolinda Barolini have come close to this conclusion, suggesting that Guido's real fraud lies in his "conversion," that is, his retreat from the warrior's life into Franciscan monasticism. (17) This conversion, she suggests, was not real, as evidenced by his ready return to conniving when called upon by Boniface. This is a good theory but does not explain why Guido is punished with sinners who defrauded those who did not trust them. Clearly, the Franciscans trusted Guido or they would not have accepted him. Clearly, if St Francis came to bring Guido into heaven, St Francis himself trusted Guido.

Dante, however, tells us that neither Guido's vows nor change of habit (pun intended), nor a Pope's pardon, absolve him of an unrepentant and, therefore, guilty soul. Guido's fraud, the one for which he is punished, may lie in his attempt to fool Dante and his readers, those who should not trust him. Specifically, Guido's fraud lies in trying to convince Dante and his readers that Boniface has the power to condemn or redeem them. The fraud in this case was then committed against those who had no reason to trust him. Moreover, given that Guido is in hell, his attempt to convince Dante and his readers that somehow divine justice has made a mistake is very dangerous and fraudulent counsel indeed.

As in the case of Dante's encounter with Ulysses, the fraud is committed against someone to whom Guido owes no fiduciary duty. Dante is being lied to. Moreover, the pilgrim's repetition of Guido's story perpetuates a story that is very likely a falsehood and, as a consequence, the pilgrim is being made complicit in the fraud. Those scholars, such as David Thompson (1974), who consider that Guido's sin was in counseling others to use fraud are spot on, for Guido uses Dante to perpetuate a fiction. The pilgrim Dante is so quick to believe that Boniface would be involved in such a nasty business that he is equally quick to repeat it when he returns to tell the story of his sojourn in the underworld.

So eager was Dante in fact to condemn Boniface that he reserves a place in hell for him even before the Pope's death, as we see in Inferno 19. The story that Guido tells provides Dante the poet with even more evidence in support of his own appeal to the outside world against the injustice of his exile. As Dante perpetuates the story, either learned from Villani or vice versa, the Guido episode represents an apt example of the adage that "the enemy of my enemy is my friend."

Palinodically, the posture of Dante as he leans over the hole in Inferno 19 speaking to Nicolas now takes on even more meaning as it aligns Dante with the Franciscans who attended condemned men. The image of Francis hovering above Guido as he is dragged down into hell recalls the imagery of Inferno 19 and reminds us even more of the sins of Boniface, the antithesis of St Francis, a Pope whose keys cannot be used to absolve himself from Dante's condemnation.

Notes

(1.) Anna Hatcher has proposed that we abandon the notion that Guido or Ulysses are being punished for being "fraudulent counselors."

(2.) As Hatcher points out, it is only after we have encountered Guido in the next canto that we hear the phrase "consiglio frodolente."

(3.) "Io stava sovra 'l ponte a veder surto, / si che s'io non avessi ronchion preso, / caduto sarei giu sanz'esser urto" (Inf. 26:43-45). See Verdicchio (2015: 287-288) on Ulysses's powers of seduction.

(4.) That both Diomedes and Paolo (Inferno V) remain "silent partners" bears further study but is not the subject of this article.

(5.) "E caddi come corpo morto cade" (Inf. 5:142).

(6.) "ma misi me per l'alto mare aperto" (Inf. 26:100).

(7.) Interestingly, most medieval law holds that there is no fraud where someone has no grounds on which to trust someone (Alford (1977) and Pennington (1970), throughout).

(8.) When Boniface sees that Guido hesitates to give him the counsel he requires, the Pope reassures the retired condottiere that he need not fear for his soul. At this point Boniface gives false counsel, for he lies, telling Guido da Montefeltro that as Pope he has the power to absolve and--here is the lie and abuse of power--that he will absolve Guido of his future sin immediately, from this very moment: "E' poi ridisse: 'Tuo cuor non sospetti; / finor t'assolvo, e tu m'insegna fare / si come Penestrino in terra getti" (Inf. 27:100-102).

(9.) "l'opere mie / non furon leonine, ma di volpe" (Inf. 27:74-75).

(10.) Guido Boniface VIII as the one who turned him back to his old bad ways: "mi rimise ne le prime colpe" (Inf. 27:71).

(11.) "ch'assolver non si puo chi non si pente" (Inf. 27:118).

(12.) "I will give you the keys of the kingdom of heaven; whatever you bind on earth will be bound in heaven, and whatever you loose on earth will be loosed in heaven" (Matt. 16:19).

(13.) Canon Law 80 (see Woywod, 1918).

(14.) The moment stands in stark contrast to the episode in Purgatorio in which his son Bonconte da Montefeltro utters a genuine "Hail Mary" and is, by this small act, saved: "Quivi perder la vista, e la parola / nel nome di Maria fini', e quivi / caddi" (Purg. 5:100-102).

(15.) See Herzman (2005: 39) regarding the possibility that Guido's story is "Guido's fantasy rather than the way that it really happened".

(16.) "while the will remains firm and unshaken, nothing that another person does with the body, or upon the body, is any fault of the person who suffers it" (City of God Book 1, Ch. 16).

(17.) "As at the core of Ulysses' story is not his fraudulent counsel but his failed journey, so too the core of Guido's story is not his counsel but his failed conversion: his own failed journey" (Barolini, 2018b).

References

Alford JA (1977) Literature and Law in Medieval England. PMLA 9: 941-951.

Alighieri D (1991) Divina Commedia. 3 vols. Edited by N Sapegno. Florence: La Nuova Italia.

Barolini T (2018a) Inferno 26: The quest. Commento Baroliniano, Digital Dante. New York, NY: Columbia University Libraries. Available at: https://digitaldante.columbia.edu/dante/divine-comedy/inferno/inferno-26/ (accessed 3 January 2019).

Barolini T (2018b) Inferno 27: A failed conversion. Commento Baroliniano, Digital Dante. New York, NY: Columbia University Libraries. Available at: https://digitaldante.colum-bia.edu/dante/divine-comedy/inferno/inferno-27/ (accessed 12 January 2019).

Hatcher A (1970) Dante's Ulysses and Guido da Montefeltro. Dante Studies 88: 109-117.

Herzman R (2005) 'Io non Enea, Io non Paolo Sono': Ulysses, Guido Da Montefeltro, and Franciscan traditions in the Commedia. Dante Studies 123: 23-69.

Markulin J (1982) Dante's Guido da Montefeltro: A reconsideration. Dante Studies 100: 25-40.

Pennington KL Jr (1970) Bartolome de Las Casas and the tradition of medieval law. Church History 39(2): 149-161.

Ryan LV (1977) Ulysses, Guido and the betrayal of community. Italica 54(2): 227-249.

Thompson D (1974) A note on the fraudulent counsel. Dante Studies 92: 149-152.

Tosti L (1911) History of Pope Boniface VIII and His Times: With Notes and Documentary Evidence in Six Books. New York: Christian Press Association Publishing Company.

Verdicchio M (2015) Irony and desire in Dante's Inferno 27. Italica 92(2): 285-297.

Villani G (1906) Chroniche Florentine. Translated by R Selfe. Edited by P Wicksteed. London: Constable.

Woywod S (1918) The new canon law: A commentary and summary of the new code of canon law. New York: JF Wagner. Available at: https://archive.org/details/newcanonlaw00woy-wuoft/page/18 (accessed 21 February 2019).

Mary A Watt

University of Florida, USA

Corresponding author:

Mary A Watt, University of Florida, 301 Pugh Hall, PO Box 115565, Gainesville, FL 32611-5565, USA.

Email: marywatt@ufl.edu

DOI: 10.1177/0014585819831969
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