The Old Yellow Book Part 22

CARLO ANTONIO UGOLINUCCI.

ROME, _February 22, 1698_.

[File-t.i.tle of Pamphlet 17.]

_By the Most Ill.u.s.trious and Most Reverend Lord Governor in Criminal Cases, or by the Most Excellent Lord Venturini._

_ROMAN LAWSUIT._

_For the Heir-beneficiary of the former Francesca Pompilia, formerly wife of the former Guido Franceschini, against the Fisc and a.s.sociates in the Lawsuit._

_Memorial of Fact by the Honourable Procurator of the Poor._

_At Rome, in the type of the Reverend Apostolic Chamber_, 1698.

ROMANA

[PAMPHLET 17.]

Most Ill.u.s.trious 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 l.u.s.t, 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 a.s.sert most safely (both for the reasons fully given in my argument for exclusion of the a.s.serted rape, which is rea.s.sumed 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 princ.i.p.al to vindicate the fame of the auth.o.r.ess from the a.s.serted 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 establis.h.i.+ng his innocence, for this is conceded by law." And Bossius a.s.serts: "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 pet.i.tion 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 d.a.m.ning his memory [Citations], likewise it cannot be denied by the princ.i.p.al 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 Ill.u.s.trious 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 a.s.serted 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 l.u.s.t with the a.s.serted 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 dest.i.tute 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 circ.u.mstances 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 a.s.serted 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 a.s.sert 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 a.s.serts 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 hara.s.sed 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 a.s.sociation with Canon Caponsacchi, this likewise does not seem enough to establish the blot of dishonour. For the most wretched wife was utterly dest.i.tute 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 s.e.x 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 princ.i.p.al 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 l.u.s.t.

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 Africa.n.u.s. 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." t.i.tus 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 pa.s.sionate 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 pet.i.tioned, 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 ident.i.ty 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 a.s.serted 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 cla.s.s. 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 s.h.i.+ning, 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 b.u.mping 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 a.s.serted 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 a.s.signed to an illicit cause, as Cravetta [Citation]

advises in such circ.u.mstances. 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 a.s.serting that she had arrived at the tavern at dawn. For she was very well aware of the credulousness of her husband, and possibly a.s.serted 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 circ.u.mstances 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 a.s.sertion 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 a.s.sert that they heard her continually praying that she might be given no forgiveness by the Divine Clemency for such a sin. This a.s.sertion 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 a.s.serted decree of this most Ill.u.s.trious 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 t.i.tle 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 a.s.signment 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 circ.u.mstances 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 d.a.m.ning 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_.