[PAMPHLET 17.]
Most Illustrious and most Reverend Lord:
In the contention most sharply and most learnedly carried on between
the Defenders of the Poor and the Fisc in the case of the murders
committed by persons led by Count Guido Franceschini against the
person of Francesca Pompilia his wife, and Pietro and Violante
Comparini, I refuse to descend into the arena, lest I may seem to fail
in the office which I discharge in common with the said Defenders. My
silent pity has delayed and let time slip by; because I believed it
would be to the prejudice of Guido and his fellows imprisoned for that
offence (in whose excuse the plea of injured honour is especially
strong) if I should wish to push the defence (which was committed to
me long ago) of the shame and honour of the same Francesca Pompilia;
for her tender mind has been stained by no infamy arising from impure
lust, and against her the suspicious husband could have made no
objection, unless wife-murder had followed, as if from this he wished
to prove the adultery merely because he could then kill his wife, and
he killed her that she might be believed to be an adulteress.
But now since the case has been most sadly terminated as regards all
of those imprisoned (for thus these things terminated which should not
have been begun) I begin anew the dispute over that most unfortunate
question, and assert most safely (both for the reasons fully given in
my argument for exclusion of the asserted rape, which is reassumed
gratuitously, and for those more fully gathered by his Honour, My Lord
Advocate of the Fisc, in his very learned allegations distributed in
both presentations of the case), first that the memory of the
aforesaid Francesca Pompilia should be utterly absolved from the crime
of adultery, which was unjustly and all too bitterly charged upon her
by her husband, and second that declaration should be made by a
definitive sentence that she has never violated her marriage vow. And
this is in spite of the fact that such insistence may seem
incongruous. For although all crimes cease with the death of the
criminal [Citations], nevertheless when a crime is atrocious, and of
such a nature that it involves in itself a brand of infamy, its memory
ever endures. And therefore it is worth while for the principal to
vindicate the fame of the authoress from the asserted crime of
adultery, etc. Pellegrini speaks as follows: "The thirteenth case is
when the heirs of one dead, for the purpose of purging him from the
infamy which works against him publicly on account of crime, wish that
[the court] take knowledge of the crime itself, for the purpose of
establishing his innocence, for this is conceded by law." And Bossius
asserts: "Note that even if death does utterly remove any further
penalty, yet the heirs of one who is dead may make a stand for his
fame and honour, in order that a declaration may be made about that
crime." And Caballus: "For although with the death of the delinquent,
a crime may be said to be extinct so far as his own person is
concerned, yet the heirs of the accused, in their own interest and to
wipe out the infamy of the one who is dead, may petition that the
court go on to give an opinion, and that it be declared that the dead
one had not committed crime." And he affirms the same under the
following number.
And indeed this is not without manifest reason. For just as the Fisc
may go further in the investigation of a crime that had been
perpetrated during the lifetime of the one now dead, even for the
purpose of damning his memory [Citations], likewise it cannot be
denied by the principal himself, as the beneficiary heir and successor
of the same Pompilia and Pietro Comparini, that inasmuch as her
innocence is evident he may insist upon carrying away a sentence of
absolution; for in other cases any one at all may have a chance to
defend one who is dead. [Citations.]
And to delay such a judgment it is not right that the flight again be
alleged, which the said Pompilia made in the company of Canon
Caponsacchi, with whom she was arrested at the inn of Castelnuovo. For
to remove that charge it is quite enough for one to allege the
judgment of this Most Illustrious Congregation, given under the date
of February 18, last past, against Guido Franceschini, because of
which he was publicly put to death on the twenty-second day following,
notwithstanding the fact that, to avoid the penalty of wife-murder, he
insisted solely upon the asserted adultery, which he claimed had
resulted from the aforesaid flight from home. All suspicion whatsoever
of her dishonesty ceases because of the defences then made and
because, in the very prosecution, there was apparent a very just
reason, on account of which the wretched wife attempted to flee thus
from the home of her husband. Nor was it for the purpose of satisfying
lust with the asserted lover, but that she might go back to her own
hearth, and there, with her parents, might live a safe and honest
life. This cause is very plainly proved by the notorious quarrels
which arose on account of the poverty of the domestic establishment
immediately after her arrival at the City of Arezzo along with Pietro
and Violante Comparini in execution of the agreement included in the
marriage-contract. And on account of this poverty the Comparini were
obliged, after a few months, to go back to the City, with no small
bitterness on account of the deception which they had detected. This
is evident from the letters of Abate Paolo Franceschini, which
presuppose these complaints that resulted from the said deception, and
especially from the letter written March 6, 1694: "I write again to
you that I do not wish to imitate him in his manner of writing, not
being of his mind to sow broadcast in my letters such words as would
well merit response by deeds, and not by words. And these are so
offensive that I have kept them for his reproof and mortification."
And further on: "So that if you give trouble, which I will never
believe, you yourself will not be exempt therefrom." It is also
evident from the letters given in my past information, and especially
in § _Videns igitur_, with the one following. And although this does
not show the nature of the altercation, yet, since Abate Paolo has not
shown the letters written to himself, the presumption presses upon him
very strongly that the complaints were just and that the cause of
their quarrels and altercations was well founded. [Citations.]
It is also true that a very bitter lawsuit was brought by Pietro
Comparini for the nullification of the dowry contract and for the
proof of the pretence of birth, which had been made by Violante, the
mother, both to deceive her husband and to bar his creditors, who were
pressing him hard at the time. And since the dowry included all the
property and the entire patrimony of Comparini, which was of no small
value when we consider the rank of the persons concerned, controversy
had indeed been raised for a considerable amount by the father-in-law.
And this, as experience teaches from time to time, is accustomed to
bring forth implacable hatred and deadly enmity. [Citations.] It
produced indeed such an effect for this unfortunate wife, so that the
love of her husband, which had long been disturbed by the preceding
altercations, was finally quite extinct. And this was so to such an
extent that she often found herself exposed to deadly peril because of
the severity of her husband, who at times pursued her with abuse, and
again even with a pistol. And it cannot be questioned that such perils
are quite suited to strike fear even into any hardy man. [Citations.]
Hence it can be much more affirmed of Francesca Pompilia, a girl of
tender age, who was destitute of all aid, and away from her own home
and her parents. [Citations.] And Mogolon [Citation] declares that the
mere sight of arms, even if the one who has them does not use them nor
unsheath them, is just cause for fear; and in § 7, _No._ 15, he
considers the absence of relatives as a ground for fear. And D.
Rainaldi [Citation] says that it is enough if one sees signs or acts
of manifest desire, or such as are preparatory.
Therefore, since so many very relevant circumstances concur, on
account of which Pompilia was moved to desert her husband's bed by
flight, all suspicion whatsoever of dishonesty and of violated
conjugal faith is utterly removed. For whenever we have two causes,
one of which is lawful and permissible, while the other is iniquitous
and abominable, the former is to be fully received, and thereby the
charge of crime is quite excluded. [Citations.] [And this is true] in
spite of the fact that this lawful cause may seem to be excluded
[first] by the letter written by Francesca Pompilia to Abate Paolo.
For in the letter, after she had thanked Abate Paolo because he had
joined her in marriage with his brother, pretence is made that her
parents gave her the depraved counsel to destroy the entire home and
to go back to the City with her lover; [it also makes pretence] that
since their departure she was enjoying a quiet and tranquil life.
[Second] from the company of the Canon Giuseppe Caponsacchi, with whom
she had fled; because of which he was banished to Civita Vecchia for
three years.
For however it may be with the asserted letter, whether it is
substantiated or not, and whether or not the qualification should be
considered probable, which is added in her sworn testimony by the same
Pompilia, namely that her husband had marked the characters and she
had blackened them with ink by tracing them with a pen, because she
herself did not know how to write; yet it is certain that if the
letter be read attentively it will be absolutely impossible to assert
that she had written it with a calm mind. For who can be found so
unmindful of filial love and duty toward parents as to persuade
himself that this tender girl could have laid upon her parents such
detestable crimes? Because at the time she was not more than fourteen
years old, according to the certificate of baptism given in the
Summary of the Fisc, in the second setting forth of the cause, No. 2.
And she was away from her own home and still grieving for the very
recent departure of her parents, and was badly treated in the home of
her husband, as is clearly shown by the continual complaints and
recourse made not merely to the most reverend Bishop, but also to the
Lord-Commissioner of the city. Nor is it probable that she would have
informed her brother-in-law, who was so very unsympathetic toward her,
of these matters unless, as she has frankly confessed in her sworn
examination, she was compelled thereto by her husband. Nor without
very evident peril of death could she show any reluctance to him
because of his excessive severity, which she had very often felt
before. And as this improbability is well suited to strike horror into
those who read it, so likewise it very well shows that the letter was
not written voluntarily, but under compulsion. [Citations.] Caballus
asserts that what no sane mind would approve is inadmissible.
[Citation.] And indeed such excessive cunning in extorting the said
letter from the wife plainly proves Guido's craft, and the fact that
the letter was obtained by false pretence, in order that he might
quiet the mind of the same Abate, his brother. For the latter had been
harassed by continual complaints on account of ill treatment of the
wife, and had not ceased to criticise Guido daily for them.
[Citation.]
As to her association with Canon Caponsacchi, this likewise does not
seem enough to establish the blot of dishonour. For the most wretched
wife was utterly destitute of all earthly aid and had vainly entreated
the authority of the most reverend Bishop, and of the Lord-Comissioner,
to free her from deadly peril; and on account of her age and sex it
was not suitable that she should flee alone or in the company of some
low-born serving-woman, for in that way she would carelessly expose
herself to graver peril, as might have happened to her if she had been
overtaken while alone on the journey. For then it could be said of
her: "She fell upon Scylla while trying to avoid Charybdis." Therefore
we should not be surprised if she took the aforesaid Canon as a
companion. For he had been proposed to her by both Canon Conti and
Gregorio Guillichini, who were related to Pompilia's husband. And it
is utterly incredible that they would have consented to such a flight
if they had not known it was quite necessary to evade the peril of
death, which they very well knew was threatening the luckless wife,
and if they had not had strong faith in the honesty and integrity of
her companion. Therefore, as such a necessity was pressing so hard
upon her, her prudent choice of the lesser evil eliminates any shadow
whatsoever of her pretended dishonesty. [Citations.]
[This is especially true when we] consider the manner in which the
flight was executed, by taking the most direct road to the City with
the utmost possible speed. And it very well shows that the sole motive
was to save her life, and not to debase herself by licentious
delights. For if this latter had indeed been the principal cause, she
would not have gone to Rome by the shortest road, where she might
immediately be taken by her brother-in-law and her parents, but would
have gone to some more distant regions, or else she would not have
gone with such swiftness, but would have delayed out of the public
highway, and in a place where her husband could not find her, and
where she could fulfil to satiety her lust.
This utter improbability therefore very well shows the truth of the
cause for flight adduced by the wife in her sworn testimony--namely
that she had gone swiftly to the City in order that she might there
place her life and honour in safety in the home of her parents. For
just as the strongest sentence of blame may arise from mere
probability, so likewise no less presumption of innocence should arise
from this improbability. [Citations.]
And this is strongly urged by the frank protestation made in the very
act of arrest at the inn of Castelnuovo to the husband himself by the
Canon, who rebuked him concerning this flight: "I am a gallant man,
and what I have done, I have done to free your wife from the peril of
death." So testifies Jacopo, son of the former Simon, a witness for
the Fisc, in the prosecution for flight (page 50). And an example was
offered by me in my allegation as regards that flight, namely that of
Scipio Africanus. For when the beautiful young wife of Aleucius, the
chief of the Celtiberi, had been captured by Scipio's soldiers, he
said in restoring her to her husband: "Your wife has been with me as
she would be with her own parents. Her virtue has been preserved for
you so that she can be given back to you again, a gift unviolated and
worthy of me and you." Titus Livius bears witness to this in his
_Histories_, book 26, and page 493 in my volume.
And although it may be very difficult for a beautiful woman to
preserve the decorum of her honour while journeying in the company of
a young lover, yet it is not utterly impossible, as the examples seem
to show, which were related in my allegation, § _Quidqud dicat_. And
to these I add that of Penelope, of whom Ovid sings in book 3 of his
elegies [_Amores_, III., 4, 23]: "Although she lacked a guard,
Penelope continued chaste among so many suitors."
And this is especially true since neither the journey nor the company
of the Canon were voluntary, but were merely for the purpose of
avoiding the peril of death. And since such necessity was present, the
presumption drawn from Ovid's _Ars Amandi_ is rendered still further
inapplicable, namely that "From a passionate young man, can she be
believed to have returned a virgin?" [_Heroides_, 5, 129.]
Nor do the letters which were found in the closet of the inn at
Castelnuovo seem to stand in the way and hinder the sentence
petitioned, and impose a blot of infamy upon Francesca Pompilia. It is
claimed that these were written by her to the Canon on account of the
very devoted love with which she was pursuing him. But the exceptions
and responses made in the past informations hold good. The first is
that they were not acknowledged by her, nor was the identity of the
handwriting proved; and some uncertainty is still present, since it is
not evident to whom they were directed; nor would it be improbable
that they might have been framed by the husband. For he was present at
the capture and search, and hoped, indeed, that therefrom might result
more readily the fixing of the crime of adultery. And he insisted very
strongly upon this, in order that he might gain the desired dowry and
lucre. This mere possibility to the contrary is enough to avoid the
proof, which it is claimed may be drawn from them. [Citations.]
The second response is that, even though such exceptions as the above
might not hold good, yet no proof of violated conjugal faith and of
dishonour can be drawn from these letters. For even though proof of
adultery may result from love-letters, it is utterly excluded in our
case when we see that they were directed to a licit end, namely toward
soliciting the Canon that he might afford her aid in her flight and
that she might avoid deadly peril. For then, just as the end is
permissible, so should the means also be considered lawful and
permissible, even though suspicion is not lacking; for these should be
considered, not in themselves, but on account of their end.
[Citations.] But indeed, unless from the love-letters themselves there
result an implicit confession of fornication, proof of adultery cannot
be drawn from them. [Citations.]
It should be specially noted that she had very strong confidence in
her own continence and in the integrity of the Canon. And she trusted
him much, and hoped that he would conduct himself modestly during the
journey, since it is evident from these same letters that she had
found fault with him for his freedom once: "And I marvel, that you who
have been so chaste, have composed and copied matters that are so
dishonourable." And further on: "But I would not have you do in any
case as you have done in these books. The first of them is honourable,
but the other octaves are quite the contrary. I cannot believe that
you, who have been of such honour, have become so bold." For such
sincere objurgation and the very tenor of the letters in which no
dishonesty is read, clearly show and declare the spirit of Pompilia,
who wrote them. For just as words are to be understood according to
the thought of the one proffering them, so likewise should letters be
interpreted according to the intention of the one writing them.
[Citations.]
Since therefore the honour and modesty of Pompilia is vindicated from
the flight and the letters, of still lighter weight are the other
proofs of pretended dishonour. These are deduced from the approach of
the Canon to her home for the purpose of speaking to her; from the
insidious manner in which the flight was prepared and put into
execution, by means of an opiate administered to her husband and the
servants; from their mutual kisses on the journey; and from their
sleeping together at the inn of Castelnuovo. For beside the general
response that no conclusive proof is offered for all these, such as
would be necessary to establish Pompilia as guilty of adultery, there
is a separate response for each of them.
The entry and egress at night time into the home of Francesca rests
merely upon the deposition of a single witness, Maria Margherita
Contenti, who is under two very relevant exceptions: namely those of
singleness and of harlotry. Her word therefore can impose no blot of
infamy. [Citations.] And since such approach would tend toward the
single end of arranging for the flight and rescue of the unfortunate
wife from the very imminent peril of death, it should not be presumed
to be for an evil end. For when an express cause is plainly present,
to which a matter may be referred, and this cause is entirely lawful,
the matter should not be attributed to a cause that is illicit and
criminal. [Citation.]
The insidious manner, also, whereby Francesca Pompilia put into
execution the flight, by preparing an opiate for her husband and all
the household (aside from the fact that it is not proved), would
afford proof of sagacity rather than of dishonour, even if it were
proved. For the wife would have been very foolish if she had attempted
flight without such a precaution.
Under the same lack of proof labours the asserted mutual kissing
during the journey; for that proof is entirely too slight, which is
pretended to result from the deposition of a single witness of the
lowest class. Especially since his word is shown to be too much
prejudiced; for he swears that, while he was driving the carriage
swiftly at night time, he saw Francesca Pompilia and the Canon kissing
each other. Nor does he give any reason, as that the moon was shining,
or that some artificial light was present to dispel the darkness.
Inasmuch as such a detail is necessary in a witness who is testifying
about a deed at night time, its omission takes away all confidence in
him. [Citations.] For there is to be added another very strong
improbability, namely that, while he was driving the carriage with
such velocity that it seemed to fly rather than to run, he could see
their mutual kissing by looking backward. Still more is this
improbability increased by the very word of this same witness, since
he swears that he had driven Pompilia without knowing that it was she,
until afterward returning to Arezzo, he had met Guido Franceschini,
her husband, following her. Because if he had seen her kiss, he would
have recognised her straightway, since he had often seen her before
and she was well known to him. And therefore it should be absolutely
declared that, either influenced by the tedium of his secret prison,
he had been compelled to swear so, or, as is more probable, since on
account of the very great speed of the carriage the bumping together
of those seated therein might chance, he had believed that this chance
jostling of their heads and faces was for the base purpose of kissing.
Hence the proof arising from his deposition was justly held in
contempt in the prosecution for flight. And it would have been
considered if it had had any probability.
Finally the proof of dishonour drawn from the asserted sleeping
together in the same tavern at Castelnuovo is far weaker, since it was
constantly denied by both Pompilia and Caponsacchi in their testimony.
And only a single witness, the house-man of the same tavern, swears to
it; and this also not from certain knowledge, but presumptively,
because they had asked him for a room with a single bed. Canon
Caponsacchi frankly confesses why he had ordered that only a single
bed should be prepared--namely that Francesca Pompilia, who was worn
out because of ill-health and the discomfort of their precipitate
journey, might rest a little, while he himself kept guard. Such an act
should not be assigned to an illicit cause, as Cravetta [Citation]
advises in such circumstances. And in No. 15, he says that
interpretation should always incline to the humaner side, even when
the rigorous side may seem the more likely. And the same author
continues thus in _Nos._ 20 _and_ 21. For it would not suffice as a
full proof of adultery that any one be found alone and naked with her
alone and naked, and that a young man be found unclothed and with
shoes off in a closed chamber with a woman. Much less can such proof
arise from a very brief delay in the same chamber for the purpose of
keeping watch.
Very slightly does it stand in the way that Francesca Pompilia, in her
cross-examination, concealed this delay by asserting that she had
arrived at the tavern at dawn. For she was very well aware of the
credulousness of her husband, and possibly asserted this to avert
further suspicion of violated honour, which certainly might have
arisen if she had confessed that she had spent a longer time in the
tavern. As even if she had not denied such a stay, the confession
under circumstances that still argue for the preservation of her
modesty would not have been to her prejudice, so likewise the lie can
do no injury. [Citations.]
But all suspicion of pretended dishonour is quite eliminated by the
assertion of the most unfortunate woman, which was made in the very
face of death, after many severe wounds had been inflicted upon her by
her husband. [For she declared that] she had never sinned against her
marriage vow, as is very evident from the numerous depositions of
religious men, who ministered to her in death. They assert that they
heard her continually praying that she might be given no forgiveness
by the Divine Clemency for such a sin. This assertion made in the very
face of death, deserves all faith, since no one placed in that
condition is presumed to be so unmindful of eternal safety as to be
willing to lie. [Citations.]
Finally, no foundation for accusing the memory of Francesca Pompilia
of dishonesty can be established upon the asserted decree of this most
Illustrious Congregation, by whom Canon Caponsacchi was condemned to
three years' banishment in Civita Vecchia, with a statement made of
his running away and criminal knowledge of Francesca Pompilia. For, as
the Fisc himself admits, there was demanded by me, though not _in
extenso_, the modification of that title by the honourable Judges,
with the approval of his Excellency the Governor. And therefore, in
the order for imprisonment, these words were suppressed and others
were put in their place: _Pro causa de qua in actis_.
All further difficulty is removed from the mere consideration that
such a decree had been issued, while no defences had been made for
Francesca Pompilia, and while she was still utterly without a hearing.
For she had not the slightest knowledge of it, since she had not been
notified. But in the decree for the assignment of the home as a
prison, only a cause relative to the trial was expressed. Hence it
could not injure her, since it was issued against a third party while
she herself had not been cited. [Citations.] And in the circumstances
that a sentence given against an adulterer can do no injury to the
adulteress when she has not been cited is the text. [Citations.] "If
he is condemned, the wife is not condemned thereby, but shall carry on
her own case." [Citation.]
This is especially true since we are not now contending to free the
husband from wife-murder, and to infer a just cause apart from belief
in the dishonour of the wife resulting from the said decree, and which
would excuse him from the penalty of the Cornelian law. In this case,
the changing of the said decree might possibly serve for an escape.
But we are contending about the damning of the memory of a woman now
dead, and about rescuing her and her family from infamy. And in the
latter case just as such a harsh decree could not injure her during
her lifetime, so likewise it cannot do her injury after her death.
ANTONIO LAMPARELLI, _Procurator of Charity_.
[in old writing.]
And according to the letter of Carolo Antonio Ugolinucci, May 17,
1698, I understand that the Criminal Court after two votes, decided on
absolution.