[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