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.