ROMANA

[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.

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