Chapter X: Part 10

The poor wife in her agitation over these difficulties that we have told, had nothing else to do but think of finding refuge from the death she feared. And when her mind was somewhat sharpened by its vexations, she intrusted herself to the Canon Conti, who is closely related to the Franceschini, and declared to him her miseries, her perils, and her just fears (although they were not unknown to him), in order that he might try to give her consolation by placing her life in safety. He was touched with living compassion and was moved to free her therefrom by pity for the grievous state in which she was. And he well knew that there was no other escape than flight from the home of her husband, according to the saying of the poet [Virg. A. III. 44]: "Alas, flee the cruel earth, flee the greedy shore." But not being able to give her aid in this affair, he suggested to her that for putting the matter into execution, there was no better person to the purpose than Canon Giuseppe Caponsacchi, his friend and intimate, whose spirit had stood every test. And when Conti had spoken of it to him, although Caponsacchi saw difficulty in aiding the desire of the young woman, because he did not wish to incur the anger of the Franceschini, yet at last the impulse of charity and pity prevailed upon him to free this innocent woman from death. And when his readiness for the attempt was reported to her by Conti, she did not fail to inflame him with more messages and letters, even containing alluring endearments, for the effecting of her escape. Yet she also kept during all this time her constant desire of not violating her marriage-vow, since in some of these letters she praises the Canon for his chastity, and in others reproves him for having sent her some rather improper octaves. She also warned him against degenerating from the good behaviour, on which she had congratulated herself and had planned with him the flight.

While her husband and the whole household were asleep, both of them, with the assistance of the Canon Conti, set out upon a headlong journey by post, without losing a moment's time, except for changing horses; and they arrived by night at Castelnuovo. And although the host had prepared a bed for rest, nevertheless they did not avail themselves of it. For Caponsacchi was always solicitously watching to see that the driver prepared other horses, to continue the journey to its end. Nor did the host of that tavern, when cross-examined in the prosecution for flight, ever dream of bearing witness that the wife and Caponsacchi had slept together in the bed that was prepared, even though Franceschini, to his own dishonour, had published the contrary, that he might, by the pretence of injured honour, throw a false light upon the true grounds of the murders committed by him.

In the meantime her husband arrived. When his wife saw him, did she, timid as she was, shrink back? Did she acknowledge herself guilty of any sin, or of any wrong done to him in guarding her purity and modesty? No! But all on fire, though she was at the tender age of sixteen years, as I have already said, the constancy of her own honour rebuked him for the tricks and abuses which he had employed, and for the threats and blows he had very often given her, and for the poisonous drugs he had prepared to take her life. And [she declared] that she had been obliged to do as she had done, to find an escape by flight from graver peril, and to return to the parental love of the Comparini, who had raised her as their daughter; and that she had always been careful to keep her wifely honour intact. The same rebuke was made by Caponsacchi, who during the flight had religiously observed the limits of due modesty.

What did Franceschini answer? What did he try to do, although he was armed with a sword against his defenceless wife and against Caponsacchi, who had with him only a little dagger? Nothing, indeed! according to what the witnesses who were present deposed; because he stood convicted by the just remonstrances of his wife. But what did he do? He gave up all vengeance, which by right of natural law, or much more by civil law, he might have taken for that; and, as the Anonymous Writer goes on to boast in justifying him for this execrable crime, he implored the arm of the Law and had his wife and Caponsacchi arrested by the authorities of the place. And at his own instance they were conducted as prisoners to the prisons of the Most Illustrious Governor of Rome, before whom Guido charged them with flight. Then, not content with this, he brought forward that other charge of supposed adultery committed with the said Caponsacchi. He also outdid himself greatly by making noisy petition to the Supreme Pontiff for their punishment, and the latter sent back his entreaties to Monsignor the Governor. He was brazen enough to demand, with a new complaint, that his wife should be declared an adulteress and that to him, according to law, should pass all the gain of the dowry. This in substance clearly proves that he did not insist on vengeance for the reparation of his honour, which he himself had passed by, but he did all this for the sole object of gain, that is to win the dowry.

What efforts, what exclamations, what diligence did Franceschini and Abate Paolo, his brother, not use to have the wife declared an adulteress and to gain the desired lucre? Monsignor the Most Illustrious Governor knows it, who endured with all forbearance their passionate pressure upon him. Signor Venturini, judge in the case, knows it. And all the other judges and notaries of the Court, who were nauseated by their importunity, know this very well. Then since judgment could not in any event fall according to the designs of the Franceschini, as there was no proof in the trial of any offence, either in the wife or in the said Caponsacchi, the most Religious Judges, who in prudence were judging rigorously (for the purpose of giving some satisfaction to the Franceschini brothers in their strong insistence, rather than because of the obligations of justice), banished the said Caponsacchi to Civita Vecchia for three years. Caponsacchi straightway obeyed this sentence, and has never left the place assigned him. The case was left undecided as regards the wife, who was placed in the Nunnery of the Scalette as a prison. Then when there was some question as to her pregnancy, with equal prudence, she was removed from the nunnery by the order of the Most Illustrious Governor; for it was not decorous that she should give birth to a child there. And with the consent of the said Abate Paolo she was placed in the home of the said Comparini under security of 300 scudi to keep it as a secure prison.

On this point the Anonymous Writer disputes too bitterly what was written learnedly by the Fisc, and claims that the consent of the said Abate Paolo had not been given. But the great and incorruptible integrity of the Fisc is known to every one; because of which he would be unwilling to give his word in writing for what was not evident on the surest proof. Yet the fact of Abate Paolo's consent is plainly proved, since he in person so agreed with Monsignor the Most Illustrious Governor and with Signor Venturini, the judge, jointly. And he exacted from Pietro Comparini the obligation to supply her with food without any hope of recompense. And this was so carried out, although the quality of the Comparini did not deserve so indecent a rebuke on account of having been too indulgent with them.

With like bitterness it is denied that the said Abate Paolo had power of attorney from Guido, his brother, enough to give such consent; because, in making such a provision, Monsignor the Governor had no need of the consent of the parties. And, even if he had wished to show Abate Paolo such courtesy and urbanity, the Author should not reply thereto with such incivility, in criticising the judge for having done wrong because of the lack of that power of attorney. For by such procedure [Abate Paolo] proves that he wished to trick also Monsignor the Governor into consenting to a thing beyond his power. And he rests convicted of this, because the said Abate Paolo was the manipulator of all they did, nor was a straw moved without his assistance. And he was well provided with abundant power of attorney by his brother, wherefrom he had the fullest authority to do as if he were the very person of his brother, with a proviso of after confirmation, the efficacy of which every one knows. And this is confessed even by the Anonymous Author, since he asserts that Guido at his departure left the entire conduct of his case to the Abate, his brother. But one may well see with what object he denies the said consent, that is, in order that he may more bitterly make pretence of the complicity of the Comparini in the pretended dishonesty of Francesca, who had been guarded by them as a daughter. This would seem very improbable if he should once admit the consent of the Abate.

No less rancorous is the assertion made by the Anonymous Writer that Lamparelli laid out the money to provide Pompilia with food while she was in safekeeping. Nor was Lamparelli reimbursed by the deposit in the Office, which had come from the money found on her and on Caponsacchi, when they were arrested at Castelnuovo, which was supposed to have been stolen from the husband. But the 48 scudi, which the wife confessed to have taken away from him, were fully restored to the said Abate Paolo, as is proved by his receipt, made during the trial. The rest of the money was conclusively proved to belong to Caponsacchi. And as soon as Abate Paolo received the money, for which he continually clamoured, he left Rome to take part in the planning of that notorious murder, which followed a little while later.

But there had previously been given notice, at the instance of Francesca Pompilia before Monsignor the Vice-Governor, of a suit for divorce and for the recovery of the dowry, which had been spent. This was very bitter to the Franceschini, because in that lawsuit conclusive proof would be made of their subterfuges, their cruelties, their threats of poisonous drugs that had been prepared; of which the Canon Conti, who was the mediator in that flight, had not been ignorant. And it is public talk and report throughout Arezzo that he died about a month ago under similar suspicious circumstances. Hereby ceased all hope, which the Franceschini had had from the beginning, of gaining the entire property of the Comparini. And from this, every sane mind may see and know what is the true root of such rash and pitiable murders; whether it is injured honour, or scandalous and detestable greed and cupidity. From this arose the hatred in the lawsuits brought and still undecided, which drew even greater dishonour upon the said Franceschini, and when decided would be for their ruin.

In vain therefore this Anonymous Writer and his other defenders wear themselves out in exaggerating the plea of injured honour. For then that which had no true existence would have been taken from Guido by his wife. This was fully proved in the arguments made for the Fisc, in answering those letters, from which Guido drew his strongest proof. On the contrary, Franceschini has by his own deed renounced all right to repair his honour, since he did not avenge it at the time of overtaking her in the said inn of Castelnuovo. Nor does his excuse really help him--that he was unarmed, because he had with him indeed a sword, and possibly other concealed arms. For it is not probable that he would have been willing to go on following his wife accompanied by Caponsacchi, without being provided with arms. And this all the more because the fugitives also were unarmed and were provided merely with a little dagger. But Guido preferred to choose the judicial road and had them arrested by the police, and he demanded that the charge against them be pushed through to their punishment, even imploring the rescript of the Supreme Pontiff. He also laid his entreaties again before the judges in the case (this very well discloses his purpose, which was the unconquerable motive of all his acts) and made special insistence before them for the payment of the price of the honour, which he pretended had been taken from him. And would he not even have had his wife declared an adulteress for the sake of gaining the dowry? If then he has, as one may say, demanded the price of his honour in the Courts, how can he be permitted to commit such awful murders for honour's sake?

For whenever a husband is permitted by reason of natural law, or even by the civil law, to kill his wife for honour's sake, this power and faculty ceases whenever the husband has renounced it by imploring, as above, the arm of the law. And these complaints that he made, and his recourse to the Pope, show the price he put upon his honour. And with these judicial proceedings he lost, without doubt, his right of private vengeance for his injured honour, which he might have carried out. And by this one tacit renunciation, this right is extinct. [Citation.] For the writer cannot claim that the judicial action brought by Franceschini would not effect the renunciation of private vengeance for his honour, but that he could still employ the one or the other, and avail himself of whichever might seem better to him. For this is contrary to the text [Citation] which is stated as follows by the celebrated Canonist, Giovanni Andrea: "A choice cannot gain both alternatives in seeking confirmation therefrom; even if the one is claimed to include that by which the man can attain the end of his intention. Therefore a man must choose one, and when it is chosen he cannot turn to the other." And still clearer are the following words of the same authority: "The right to return to a second alternative shall not at all be allowed, when one seems to have renounced to choose the first and to profess that his rights cannot arise therefrom."

But although this exception from every miscarried law might be judged permissible, every foundation of it would be destroyed by the utter lack of proof of an offence received in his honour; for there was no proof of it in the prosecution for flight. The Anonymous Writer strives to deduce that from the pretended love-letters written to Caponsacchi, which were denied by Francesca and were not proved to be her handwriting, either by her own acknowledgment or by her signature. One cannot claim that she was convicted of it, nor that any legitimate proof of it resulted, as all judicial practice shows.

And even if without reason we were obliged to acknowledge that they were written by her, would it not be too bitter and too unreasonable an inference that from them arose the husband's motive for killing her because she had written them? No one of sound mind will be persuaded to pity the husband who has gone on to kill his wife for the sole reason that she had written love-letters. For conjugal honour is offended neither by note, nor by pen, but only by acts of impure dishonour; and of this, in our case, every shadow of proof is lacking.

This is all the more true because the mere suspicion of dishonour ceases with a thought of the true motive, for which the letters were written; namely, by pretended demonstration of affection to allure this Caponsacchi to rescue her from imminent peril of death. Nor from this could she find any other escape than by flight; for she was always terrorised by the anger and hatred conceived by her husband for feigned reasons. And therefore, as the love-letters arose from that occasion they ought to be referred to it, and not to a dishonourable wish to smirch her conjugal faith to her husband. To the same cause, likewise, should certain conversations be referred, which she had had from the window with the said Caponsacchi in order to arrange the manner of saving her life, and not to give offence, nor to hazard her own modesty, nor the honour of her husband. Even the most chaste of women have used like artifices. We find in the Sacred Scriptures that Judith entrapped Holofernes in the same way, for the purpose of winning the liberty of her native land. And so it may be no less permissible for this poor woman, who was solely intent upon the security of her life, to allure Caponsacchi by amatory letters to be a safe companion for her in her flight, and this without any stigma of immodesty.

Much less can an offence of his honour be inferred from the flight; because, as I noted above, this flight resulted from the cause declared. And one may see clearly that it was not for doing any injury to her husband. For the fugitives did not turn aside into unknown places, but they journeyed precipitately along the consular road by post, without spending the night anywhere. And their journey was toward Rome, where the poor wife hoped that the Comparini, who had raised her as their daughter, would continue toward her those acts of love with which they had brought her up, even till the said marriage was contracted with Franceschini.

And all that is being reported that a driver testifies he had seen them kissing along the road has no legal foundation. For it rests merely on the word of a single witness of the lowest class, and he swears to matters that are quite improbable, because he had to drive the carriage with such rapidity as that with which the fugitives were following their journey. Hence it was almost impossible for him to look backward, or to see what they were doing inside of that covered carriage. And this is all the more so because his deposition is vague, nor does it specify whether the kisses were given at night or by day. But his deposition is rendered much more doubtful and improbable because, in such a swift journey as the carriage was making, it might chance during the jolting of it that the accident of their faces meeting casually would arise, and to him this might seem the act of kissing. This happens very commonly, even when one is making no such journey, according to the quality of the road and the rough ways which one finds. This makes his testimony insufficient and doubtful enough or, even further, it is audacious and incredible.

Then as to the other point which the Anonymous Writer asserts too bitterly, namely, that when they arrived at Castelnuovo the innkeeper was ordered to make up only one bed for the repose of the fugitives, and that they slept together. The host however did not have the hardihood to swear, in his cross-examination, that they had slept together in it. This circumstance is excluded by the deposition of the wife as well as by that of Caponsacchi. Because their affidavits constantly affirm that neither of them went to bed for rest, but that merely the wife, who was worn out by the discomfort and suffering of so precipitate a journey, rested for a few hours seated in a chair; and that the bed was left arranged as the host had adjusted it; and it would have been found mussed, if they had slept in it. It is also proved that when Franceschini arrived at the said place he found Caponsacchi urging that the horses be harnessed for continuing the journey, and no proof is given to the contrary. Nor can one justly pity Franceschini for his injured honour, which had been kept intact by the fugitives.

Likewise the title, to which the same Writer appeals--that the decree of condemnation for Caponsacchi's banishment had been inflicted because of criminal knowledge, to the injury of Guido's honour--has no real foundation; because this title was corrected as untrue, and not in accord with the proofs. Of this fact we may have as legitimate witnesses the very Governor himself, and all the judges and notaries of the tribunal who have any part in the criminal court. And if one will only give it due thought, the title of that case was placed there, just as a wine bush hangs outside the door of an inn, which very well shows that they sell wine there, but does not prove whether what they sell is good, and saleable, and agreeable. Oh! by no means. For one may find the wine there to be sharp, and muddy, and of other inferior qualities. If therefore we read the documents and the proofs registered during the prosecution, by which the crime is proved, and not by the erroneous title, which cannot offer a shadow of proof for the pretended criminal commerce, there is even less suspicion of immodesty. And one can well understand that all proof was lacking during the prosecution from the mildness of the penalty inflicted, which does not at all correspond with the gravity of the crime charged. One can also see the impropriety of condemning Caponsacchi as an adulterer while the cause against the wife was still pending; because she could not be condemned while undefended.

But to remove every suspicion of this pretended adultery, I beg any dispassionate reader to reflect that the adultery could not have been committed in Arezzo, because to the guardianship of her husband was added that of the brothers, of their common mother, of the servant, of the relatives, and of the neighbours; yea, the voluntary imprisonment of the unfortunate child, who was always shut in a small room to guard her honour. Much less could adultery have been committed during the journey, as has been proved to be utterly unlikely, improbable, unproved, and far from the truth. Nor could it have been committed at Rome; for it is well known that Pompilia was taken from Castelnuovo to prison, and from there was removed to the Nunnery of the Scalette, and then because of her pregnancy was consigned to the said Comparini, under the form of keeping their house as a prison with security of 300 scudi. Caponsacchi also was staying then at his place of banishment in Civita Vecchia. In this fact all suspicion ceases, since the consent of Abate Franceschini, who is so zealous for his brother's honour, as well as his own, concurred therein.

Nor can one restrain himself without strong exertion when he hears such exaggeration from the Anonymous Writer as that Caponsacchi left his prison to go in banishment to Civita Vecchia at a time when the wife was staying in the house of the said couple, as a prison, and that he lodged in their house. But he cannot speak a more barefaced lie than that, because Caponsacchi has never been their guest, and as soon as he left the prison he went to the place of his exile; and he has faithfully observed his banishment without ever returning to Rome. Nor did the wife leave the nunnery before it was proved to Monsignor the Governor that Caponsacchi was staying in Civita Vecchia, as was established by the authentic testimony of the Chancellor of that district.

The said Writer, however, gives me even more room to blame his excessive boldness in stigmatising the honour of Franceschini as sullied by his wife, by saying that as soon as Guido had ascended the stairs in company with his fellows, armed to commit this execrable murder, he looked about upon those walls, which were all full of his insults, as if the said silent stones had known how to make contrivances of foolish thoughts to foment his inhumanity for so horrible a murder. Because for this he can give no other proof than that he was writing fancifully without any foundation. For Guido was indeed willingly dishonoured; because to his other dishonours he added these disgraces also, even by his own wrongdoing. For it is made very clear above that the cause for which he committed the crime was not to repair his honour, which had been injured by his wife. But it was his unmasked tricks, the hoped-for lucre, which had vanished, and the lawsuits still pending.

And why can he not bring some other no less convincing proof, if honour urged Franceschini thereto? And was not that honour sufficiently avenged by the death of his wife? Why imbrue himself straightway with the blood of Violante and Pietro, who were not accomplices in the pretended dishonour? And why should he lay such plots through many days to procure the death of that kindly benefactor, because the latter had been moved by pity and had ministered to their aid in the said lawsuits? Upon that one there has never fallen a suspicion prejudicial to Guido's honour. For while the wife was in Arezzo he was staying at Rome. And when she was first married she was not fully thirteen years old, and after her flight, when she had returned to Rome, we know that she continued under guard in prison, or in the nunnery, and then in the home of her parents, and at this time she was very near her confinement. Hence one can conclude truly that the motive of this murder was other than that of honour, and that it was his greed, as was said, and the lawsuits, as Franceschini himself confesses in his cross-examination.

Nor ought the declaration made by the said wife in the face of death be despised, since in the presence of many priests and persons who are quite trustworthy, even while she was constantly suffering from such severe wounds, she maintained and professed with greatest frankness that she had always lived chaste and faithful to her husband. And with a heart in fullest resignation to the Divine Mercy, she prayed pardon for every mistake she had committed to the disgrace of her husband. Nor in such a matter is it to be presumed that the one dying lies, at the risk of the eternal safety of her soul. A person should also reflect that in this deed there occurs a special favour from the hand of the very Omnipotent, who caused the wife to survive for a few days, in order that she might make clear her own innocence and throw light upon the murderers; for without this the crimes would have gone unpunished. For during the same crime Franceschini had repeatedly commanded his companions to see if she were quite dead. And when they had taken her by the tresses and had lifted her from the ground where she lay, they believed she was dead; because the poor wife, by natural instinct, knew how to feign it by her relaxation, as the delinquents confessed. And this mark of divine favour all the more verifies the declaration of the wife, which has been proved by the confession of those guilty of the crime.

I have left it for the last to discuss and refute what the said Writer pretends concerning Abate Paolo. But if he had to speak the truth, he might reasonably affirm that the Abate had been the whole foundation of this scandal. For he had urged Guido on to the murders, and he had woven the whole plot, inasmuch as it was he who, from the beginning, wished to attain, by dint of industry and trickiness, the marriage of the said Francesca Pompilia. It was he who had sustained the suits, both civil and criminal, and he who, under the name of a grandee, and by boasting of their word of honour, had tried to extort a judgment by means of fine insinuations, by subterfuge, and by trickery; which was not right. It was he, who was very sensible of having been proved to be the man of guile, who had been deluded by his own trick. Therefore this Writer had good reason to say that the faces of others served the Abate as mirrors by which to read his own evil courses, and not the lost honour of his brother.

I forbear to respond to what the Anonymous Writer has tried to have believed to the praise of Abate Paolo Franceschini, to excite greatly our pity; since the intention of the author of the present response is no other than to make clear the falsity of the suppositions against the honour of the poor wife and against the Comparini, and to serve the cause of justice. And he leaves the judgment of it to those who have full knowledge of it. From the same consideration I pass over responding to many another impropriety, which has been advanced uselessly and without any point by the said Writer.

And I close my response with the example of Samson, alleged by him. When he saw himself exposed to the public scoffs of the people, he gave a shove to the pillars of the palace, causing it to fall that he might die with the rest under its ruins, and might cease to be longer the scorn of that people. So lest the said Franceschini may be ridiculed for his tricks, it is fitting that he and his companions pay the penalty merited by their crime. For these are pernicious to the State and to that peace and security which litigants in the Courts of Rome ought to enjoy, if we would maintain what the vigilance of the Supreme Pontiff Alexander VII., and his successors, has provided. For they have published a Constitution as to that, and with it Banns, successively promulgated. The sacred order of such laws should be observed all the more willingly, inasmuch as Guido had chosen the judicial way to vengeance, and the appeals made to the Supreme Pontiff, who is most eager to do what is just, were sent back to his judges. Nor could Guido grieve for this without some pretended injury, as is evident; hence the Anonymous Writer wished to ascribe it to the aggravation by which the anger of Franceschini had been exasperated. This clearly shows with what intent he had broken into such detestable excesses.

[File-title of Pamphlet 16.]

_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._

_Reply as to law, by the Honourable Advocate
of the Poor._

_At Rome, in the type of the Reverend Apostolic Chamber,
1698._

ROMANA HOMICIDIORUM

[PAMPHLET 16.]

Most Illustrious and Most Reverend Lord:

I omit further discussion with my Lord Advocate of the Fisc about the communication of his allegations, because the time is brief, and I have professed great reverence for him since my youth. Let me also pass over the claim that when one is arguing about death inflicted by a husband upon his wife, not in the act of taking her in adultery, but after an interval, mere suspicion, however strong, is not sufficient to redeem him from the ordinary penalty of the Cornelian law, but that the clearest proof of the adultery is required, as is claimed by our opponents. Yet we have proved the contrary in our former argument, § _quamquam ad hoc_. And Dondeus, Sanfelicius, and Muta, who were not cited there, hold that it is quite enough if the couple be found alone in some retreat; and No. 3 says especially if the wife be beautiful. [Citation.] See the word of Ovid: "Great is the strife of modesty with beauty, And man keeps eagerly craving it." [_Heroides_, Paris to Helen.] So in the present case, according to the same author: "By this young and passionate man is she supposed to have been returned still a virgin?" [_Heroides_, 5, 109.]

At present, we are dealing with a case not merely of clearest proof, but also of notorious fact; because we have a decree of this very Tribunal by which such adultery was declared. Although the words of this decree have been given in the present information, § _Absque eo quod_, yet I wish to repeat them here, because they are so clear: "Giuseppe Maria Caponsacchi, of Arezzo, for complicity in the flight of Francesca Comparini, and for criminal knowledge of the same, is banished for three years to Civita Vecchia."

But I cannot pass over what is still claimed--that this decree was revoked--because, as I have said in my information, the truth is quite the contrary; for we have only the fact that in the mandate for imprisoning the sinning Canon the repetition of the whole decree, as given above, was omitted, and it was said: "For the cause, concerning which in the suit." These words are so far from showing a revocation that they rather offer confirmation of the said decree, as we have affirmed in our information, § _Nec verum est_. The same should be said of the like words furnished by the notary in the bond which Francesca Pompilia executed to keep the home of her father as a prison. This was when she was brought there from the nunnery, where she had been staying securely, on the grounds of her supposed infirmity, but I may say more truly that it was because of her pregnancy, which she wished to hide by some evil deed.

[Our claim is all the more true] because this pretended revocation of the decree could not be made when the other side had not been heard, as I have said in my information, § _Eoque magis_.

Likewise I cannot pass over what is said as to the Canon having been condemned only to the penalty of banishment because of defect of proof of adultery. For if such proof had not existed, how could my Lords Judges express in the decree that they condemned him for criminal knowledge of the same Francesca Pompilia? It is the truth that the judges held that the said adultery was most conclusively proved, and that the said Canon was convicted of the same, since in the prosecution nothing is wanting but the taking of them in the foul act; and this is not necessary to prove adultery. [Citations.]

The penalty to which the said Canon was condemned did not indeed correspond with the said crime. As to this many replies may be made, but, because this has no connection with Count Guido let it also pass by. For however that may be, who can deny that Count Guido, on reading the said decree, which needed no comment, ought justly to be angered for the conjugal faith violated toward himself? And who can deny that he ought to be somewhat excused, if afterwards he took vengeance for such a violation? [Citations.]

And this is true, although he took such vengeance after an interval, as was plainly demonstrated in my said past information, § _Nec verum est_. For there are few authorities who hold the contrary, and therefore it would be almost heretical to doubt the truth of such an opinion. [Citation.] Especially since this has been accepted in almost all the tribunals in the world, particularly in that of the Sacred Council, which establishes the precedent for all the other tribunals of the City and of the entire Ecclesiastical State. Hence Concioli affirms that it is almost like sacrilege to depart from this opinion. [Citation.]

And is it not a fine pretence to wish to exclude the plainest proofs of adultery by the word of the very wife convicted of it, and then retained in the nunnery by reason of it, as my honourable Lord Procurator General of the Fisc has ingenuously acknowledged? For a person is not obliged to disclose his own baseness in the face of death, as we have proved in the said present information, § _Et quatenus_, and the § following. And since she had lived badly, not to say in utter baseness, to the injury of the honour and reputation of her husband, we inflict no injury on her by wishing to presume that even in death she did not come to her right mind, according to the saying: "He who lives badly dies badly." And no one, even in death, is presumed to be a Saint John the Baptist, as in my information, § _Nec valet dici_.

As therefore it remains firmly established that Count Guido had just cause for killing, or causing to be killed, Francesca Pompilia, his wife, the same must be said as to the murder of Pietro and Violante, the father-in-law and mother-in-law. For in the prosecution of the said Francesca Pompilia for flight from her husband, proof also came to light that they had conspired in that same crime, and consequently were among the causes of the injured honour and reputation of Count Guido. And this injury to his honour had also resulted from what they had pretended and had exposed before every one--that his wife was not their daughter, nor legitimately born, but was the daughter of a harlot. And afterward they had received her into their home when she had been declared an adulteress. For either she was their daughter, and they ought not to deny it in Court, or else she was not their daughter, and they should not receive her into their home after she had been convicted of adultery. For in doing so they had, by that very act, declared that they had been and wished to be her panderers. [Citations.]

The confession of Count Guido cannot be divided from its qualification, that he had demanded the murders for honour's sake. But it ought to be accepted by the Fisc along with the said qualification, as we have proved in our information, § _Huiusmodi enim confessio_. The authorities alleged to the contrary by my Lord Advocate of the Fisc hold good in a qualification, extraneous to the confession itself and which is not therefore proved otherwise, and when there is argument for some extraordinary penalty, and we have admitted this in our information, § _Præsertim_.

But just as the plea of injured honour relieves Count Guido from the ordinary penalty for murder, so should he be excused from certain other ordinary penalties, laid in the Banns and Apostolic Constitutions against those bearing prohibited arms or committing other crimes. For I have said, and I repeat, that the just anger which excuses him from the one crime should also excuse him from the others, since this reason is everywhere and always in his favour, that he was not of sound mind, according to what was affirmed in our information from § _Agnoscit Fiscus_, down to § _quo vero ad litem_.

And just as this cause is enough to gain for Count Guido a diminution of the penalty, so should it be considered to be sufficient likewise to gain that favour for his fellows, who as auxiliaries cannot be punished with a greater penalty than the principal himself, according to almost innumerable authorities, and they of great name, who were alleged in my past argument, § _quæ dicta sunt_, with the following, and in my present argument, § _Verum et Sociis_. To this, no response has been given by the other side.

This is all the easier as regards Blasio Agostinelli, who has not at all confessed that he killed or wounded any one, but only that he was present, as we have formerly considered the matter in our information, § _Quoad Blasium_.

And as to Domenico and Francesco, beside what has been deduced in favour of the others, they are foreigners, and are therefore not bound by the Banns of the Governor (for by these, men who live outside of the District are not bound) nor by the Apostolic Constitutions prohibiting the bearing of arms, as we have said in our past argument, § _Quae eo facilius_.

This is all the more so since Domenico still asserts that he is a minor, and for this purpose he was so described in the prosecution (page 304). And as regards Francesco, beside the abovesaid description in the same prosecution (page 35), we have the baptismal register, which conclusively proves his age. [Citations.] For he was born the 14th day of February, 1674, from which it is evident that at the time of the commission of the crime, which is to be had in regard for punishment [Citations], he had not completed the twenty-fourth year of his age. And to one less than twenty-five years old the penalty should be diminished, etc. [Citations.]

And this indeed is of necessity, and not at the discretion of the judge, because such diminution of penalty arises by advantage of law that has been passed and from intrinsic reason, diminishing the penalty. [Citations.]

Although there are not lacking some authorities who think the contrary, namely that it all depends upon the discretion of the judge, yet our opinion is the truer and the more generally accepted in criminal causes which are not very atrocious. [Citations.] And when the crime is merely savage, or more savage, the judge is obliged by the very necessity of his duty to diminish the penalty, according to those authorities recently alleged. [Citations.]

This opinion also has a place in the crime of murder, notwithstanding the order of the text. [Citations.] "If any one should make you a defendant under the Cornelian Law, it is suitable that your innocence shall defend and purge itself by your minority." For the order of this text should be interpreted thus, namely, that a delinquent who is a minor is not to be excused entirely, but is only to be punished more mildly, according to the old authorities who are cited with abundant hand by Farinacci. [Citations.]

This is especially so when, as in the present case, the delinquent minor does not sin alone, but in company with others; for then he is presumed to be seduced by them, and therefore the ordinary penalty comes to be diminished the more readily for him. [Citations.]

We do not know whither the Fisc pretends to turn for the destruction of these foundations in law, because my Honourable Lords, the counsellors of the Fisc, have claimed nothing as to this matter, either in their past argument or the present one. For when they claim to escape our exception by the Florentine Statute [Citation], that a minor of sixteen years is punished criminally, other responses are at hand:

First, that the provision of this statute does not extend to crimes committed outside of the territory of the said State, but that the place of the crime and its statutes should be attended. Then these indeed cease, as they do in the present case, because the Banns of the Governor have no place when there is argument for the punishment of a foreigner. This fact arises from defect of power in the Prince or official establishing them, according to what was alleged in the past argument, § _Quae eo facilius_, and the one following. For then the criminal should be punished according to common law. [Citations.]

The second response is that the statute says nothing else than that a minor of sixteen years cannot be punished with the ordinary penalty of the crime. Consequently it ought to hold good in our case, since we are indeed arguing about a minor exceeding sixteen years, but of one less than twenty-five years old. Such a rule should be drawn from Common Law, in view of which the said statute in such a case receives a passive interpretation. [Citations.] Caballus testifies that he saw it so practised in diminishing the penalty to one less than twenty-five years, that is to one who was eighteen years old. [Citations.]

Finally the third response, and the one that lays the axe to the root of the tree, is that the Accused is not of the city of Florence, nor of its territory, but of the territory of Arezzo. But the city of Arezzo and its dependencies are not bound by the statutes of Florence; first because they are not called subjects, but vassals, of the said city of Florence; and, second, because the city of Arezzo has its own statutes. [Citations.] For reference is had to the ruling state, when other subject states have not their own statutes; but it is otherwise, if they have them. [Citations.]

And so they are contrary, or incompatible. [Citations.]

Soccinius [Citation] bears witness of what manner these statutes of Arezzo are, as compared with those of the city of Florence, etc., and this is plain from the Rubric, etc., where it is commanded that those under twenty-five years cannot be rendered liable, without certain ceremonies, as Paolo di Castro counsels. [Citation.] For from this statute it is sufficiently evident that in the said city and its environs a less age is the rule according to common law.

So far as the Fisc may have foundations, which in our feeble judgment we have been unable to guess, I pray that these be kindly communicated to me, lest the poor accused minor may remain undefended.

Finally, as regards Count Guido, I pray that notice be taken of the unfortunate condition of himself and of his noble family. For all of his family and connection have had enough to lament even to the last breath of their lives, when they look upon the ignominy brought upon them by this woman and her parents. And because of this, there has been doubt up to the very present moment whether one nearly related would go mad. And the excellent piety of our most clement Prince and Most Illustrious Lord has declared this, to whom the Accused himself with his whole heart commends himself in the Arguments made in his defence, not to speak of what they may learn about it from the Anonymous Author [Pamphlet 10]. [Citation.]

DESIDERIO SPRETI, _Advocate of the Poor_.

LETTER

WRITTEN BY THE HONOURABLE SIGNOR GIACINTO ARCANGELI, PROCURATOR OF THE POOR, TO MONSIGNORE FRANCESCO CENCINI, IN FLORENCE, IN WHICH HE TELLS HIM THAT THE SENTENCE OF DEATH HAD BEEN EXECUTED IN ROME AGAINST THE GUILTY ON FEBRUARY 22, 1698--THAT IS, THAT FRANCESCHINI HAD BEEN BEHEADED, AND THE OTHER FOUR HANGED.

[LETTER I.]

To the illustrious Signor, my most worshipful Signor and Patron:

Too late have arrived those proofs, which were sent to me by your Honour, on behalf of Signor Guido Franceschini of blessed memory. For when the Congregation of Monsignor the Governor had determined, in spite of the reasons given in his favour, that Signor Guido was guilty under the death penalty, I obtained, with much trouble to myself, some delay for proving his clergyship alleged by me. To this end a messenger was dispatched to Arezzo. But since the Sanctity of Our Lord [the Pope] did not deem it wise to postpone the execution of the sentence already decreed, he has seen best by special writ to make denial of any clerical privilege, which might have been claimed [in Guido's favour], and also as regards the minority of Francesco di Pasquini, one of the accomplices. Hence sentence against all five has been executed to-day, with distinction only in the manner of their death, as Guido's life was ended by decapitation. This consolation survives for his relatives and friends, that he has been pitied by all men of honour and by all good men. Confessing my own shortcomings, I cannot deny feeling infinite regret, as I attribute the whole outcome to my inability in offering the valid grounds. May God reward his house and all his friends with abundant blessedness for this tragic accident. Desiring your further commands, I reaffirm myself, as ever,

Your Excellency's most obedient servant,
GIACINTO ARCANGELI.
ROME, _February 22, 1698_.

To the illustrious Signor, my most worshipful Signor and Patron, Signor Advocate Francesco Cencini, Florence.

LETTERS

WRITTEN BY SIGNOR GASPERO DEL TORTO AND SIGNOR CARLO ANTONIO UGOLINUCCI TO THE AFORESAID MONSIGNORE FRANCESCO CENCINI.

[Letter II.]

The proofs you send did not arrive in time, because to-day finally, after so many disputes, the execution of poor Signor Guido has taken place, he having been beheaded, while the four cut-throats have been hanged. The case was decided Tuesday, but because it was a churchman who had sinned, and because it was claimed that the death-sentence was not in keeping therewith, a messenger was dispatched to Arezzo later on to get proofs of it. But the Pope yesterday set his hand thereto, and has decided the case, so that to-day it has so followed completely. Now that the will of God has been fulfilled that he should suffer such a punishment, it has at least been brought about, in view of the arguments made in his defence, that he died the death of a gallant man. For aside from the fact that he has died with exemplary courage, he has also been pitied by all gallant men, and his house has lost nothing in the matter of reputation. All Rome was there, as you may well believe. And [the mistake] cannot be made good with such speed as this may be written, because there have not been lacking admonitions of greatest consequence, since the Ambassador of the Emperor spoke of that point on Tuesday, as he himself told me day before yesterday; and than the matter was settled precipitately.

I have finished the argument before the Congregation of the Council, and at any time that Monsignor Secretary wishes to take it, I think we shall be ready. I pray you favour me with those copies of the proof as soon as possible. And if Canon Philippo does not give us the opportunity, he should be good enough to acknowledge it to me that I may think of other measures, wishing once for all to get out of this imbroglio if it shall be possible. And finally, I remain with all reverence, my most illustrious and most excellent Signor, Your humble and obedient Servant,

GASPERO DEL TORTO.
ROME, _February 22, 1698_.

To the most illustrious and most excellent Signor, my dear Signor, Signor Francesco Cencini, Florence.

[Letter III.]

My most illustrious and excellent Signor, my most worshipful Patron:

Tuesday this most unfortunate case was brought up and the Congregation of the Governor decided--Delay and according to instructions. The instructions were that they would await the proofs of the well-known clericate. At this favourable decision the defence took heart and Guido's good friends began to breathe again. Then last evening at eight o'clock Monsignor signed of his own accord the warrant, in denial of the clergyship which might be alleged and of the minority of one of the accomplices. No sooner had he signed the warrant than the news of it sped throughout the City, and with it the assurance of the sentence, which has been executed to-day since dinner against the five; that is, the loss of his head in the case of Signor Guido, and the gallows for the other four accomplices. I will not tell your Excellency my own grief, because you yourself will be able to be a true witness of it. These proofs would have been of the greatest relevancy, but not in this case, because Monsignor wished it so.

I enclose the Fisc's argument, except a single response, which I will send to you as soon as I can lay hands on it, that your Excellency may have the entire case.

Now that Signor Advocate del Corto has abandoned his own interests I may serve your Excellency in the matrimonial case and in the other of Gomez. Therefore I set myself to all that in order that I may serve your Excellency, praying evermore your continual commands, that I may ever be your Excellency's obedient servant,

CARLO ANTONIO UGOLINUCCI.
ROME, _February 22, 1698_.

[File-title of Pamphlet 17.]

_By the Most Illustrious 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
Associates 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 Illustrious and most Reverend Lord: