ROMANA HOMICIDII CUM QUALITATE

[PAMPHLET 6.]

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

1700 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 6, 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 12, 1694, 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. 1. 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. 2. In vain was the interposition of certain noblemen tried; which

had proved utterly useless, as is evident from the letter of March 6,

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. 3. 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. 4.

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. 5.) 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. 6.

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 7.]

_By the Most Illustrious and Most

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