[PAMPHLET 8.]
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. 141_, he shows that he is very changeable, since in _cons. 66,
No. 5_, he has proved the contrary. Therefore, when his attention was
called to this changeableness, in excusing himself, he asserted, in
the said _cons. 141_, under _No. 16_, that Beatrice, in behalf of
whom he had written in _cons. 66_, 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. 66_: 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. 2_, § 4, _No. 156_), 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. 7
in Rubrica sub No. 60_), 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 5, 63, and 92.)
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. 96 and 97). And this is
admirably proved by a letter of the same Governor recently presented
by ourselves, which we give in Summary, No. 1.
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. 2, 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. 4, and our Summary, No. 3) 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. 4, 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. 2, letter K. For proof of this statement she can bring no other
evidence than that she does not know how to write. Summary, No. 2,
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. 39). 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. 132. 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. 5,
letters A, B, C, and D. This is verified by the Fiscal witness (p.
108), 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. 1, 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. 6, 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. 2, 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 190).
This is also proved by the letter of the Abate produced on the other
side (p. 182), 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, 188, 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. 2).
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.
2, 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. 7), 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 17, 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
179), 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. 124, 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 20): "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 18, 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 19 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 98), 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 29.) 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. 2, letter G, and No. 5, 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 11:
"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 19 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. 107-8). 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. 2, 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. 107): "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
11, 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. 108, 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. 18, 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 4, where we read: "Then,
further, if they continue to drink the red wine I will tell you so."
In No. 12: "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 13: "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 5 and 21; 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 100 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 11 [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 10:
"And giving you an amorous kiss." And in 5: "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. 4 and 100), 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. 44, 47, 49). 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.
2, 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. 8, 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. 337, num.
13_). 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 _Æneid_, 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. 76 and 77). It is also true that the priest was a
terrible fellow, according to the witness for the prosecution (p.
167), 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. 71). And, furthermore, Caponsacchi was all too
prompt and too much disposed to resisting, as we read in letter 18.
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. 50). 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. 318), 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. 136). 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. 318), and the following. And Alexander
proves this in his confession where he says (p. 646): "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. 96 and 97):
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. 678) 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 82, 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. 65_, _No. 66_).
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. 20_, _No. 146_), 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 8, 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 90_, _No. 7_: "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. 51_).
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 9.]
_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,
1698._