These matters we have noted beforehand rather in super-abundance than because we were obliged to assert the justice of the decree of this Tribunal. It will now be easy to escape the proof of pretended adultery, brought by the counsel for the Defence. For so far as this proof is drawn from the other decree of this same Tribunal, condemning Canon Caponsacchi for flight and carnal knowledge with Francesca Pompilia, the response which has already been given holds good: namely, that a title should be given no attention, but merely the proof resulting from the trial, and the penalty imposed by the sentence. And what if in that decree, along with the "title" of "complicity in the flight and escape of Francesca Pompilia," there was also added the title "for criminal knowledge of the same"? Yet since in the trial itself no proof in verification of this was found, and since the penalty of three years' banishment does not correspond therewith, the mere title should not be given attention, according to the authorities adduced in my past response, § non relevante.
And on account of the following reason, still less can such clear proof of the pretended adultery be established as is required to escape the ordinary penalty for taking vengeance after an interval. For at the instance of the Procurator of the Poor a correction was decreed by the Judges, with the approval of my Most Illustrious Lord, which substituted a general title relative to that suit, namely Pro causa de qua in actis; and although this correction is not to be read in the record (commonly called the Vachetta) in which decisions are usually noted, yet it was made in the order for the dispatching of Caponsacchi to his exile and in the decree assigning to Pompilia the home as a prison. (Summary, [No. 1].) And since the latter was made with the consent of Abate Paolo Franceschini, we may assert that the said change of title became known to him because of his notorious solicitude in conducting the case; and so it would be very improbable that he had not carefully examined such a decree and the obligation made by Pietro to furnish her food, without hope of repayment, and the bond given for her to keep the home as a prison. For these reasons his knowledge of that change should be considered as sufficiently proved. [Citations.]
And therefore the response falls to the ground that the decree could not be changed unless both sides were given a hearing. For while Francesca Pompilia, whose defence had not yet been finished, was unheard, much less could the title of criminal knowledge be included in the condemnation of the Canon. For this would be injurious to her, not merely as regards her reputation, but also for the loss of her dowry, for which her husband was especially greedy. For in this way would an undefended woman suffer condemnation, and what is worse, as the event shows, would be exposed to the fury of her husband. And hence with justice was this correction requested and made. And even if this had not happened, a sentence given against the Canon could not injure her, as it was a matter done with regard to other parties. [Citations.]
But it is quite gratuitous to assert that a change as regards the matter of the trial does also impart the same change as to the expression of the title of carnal knowledge. For since several titles were originally expressed in the decree of condemnation (such as complicity in flight, running away, and carnal knowledge upon which the suit was based) the statement of the cause contained therein is no more probable as regards one than as regards another, and certainly it is not probable as regards them all. For if they had wished to include all those in the modified decree, they would have said: Pro causis de quibus in Processu, for the singular number does not agree with several causes. [Citations.] But in the prosecution the charge of "criminal knowledge" was not proved and the Canon could not be condemned for that while Francesca Pompilia was unheard and undefended. This is on account of the indivisibility of the crime of adultery, which does not permit the division of the case for the purpose of condemning the one, while the case is pending as regards the other. And this is especially true when all parties are present and are held in prison. [Citations.] The expression, therefore, Causæ, de qua in Processu, should be understood to apply only to the complicity in flight and running away (for this could be issued without the condemnation of Francesca Pompilia), and not to apply to "carnal knowledge." For the statement made should be considered applicable only to those matters with which the judgment relative thereto agrees. [Citations.]
And this claim of ours is rendered manifest by the mildness of the penalty to which the Canon was condemned, namely, that of three years' banishment. This certainly does not correspond with the offences of running away with a married woman from her husband's home, bringing her to the City, and carnal knowledge of her. For inasmuch as the attendant circumstance of rape, spoken about, is punishable by the capital penalty, unless a priest is being dealt with, a far severer penalty would have to be inflicted for the adultery alone, if proof thereof had resulted from the trial. [Citations.]
My Lord Advocate of the Poor acknowledges that the penalty was too light to expiate harshly such a crime, and especially in accordance with the Constitution of Sixtus, revived by Innocent XI. of sacred memory. And therefore to avoid acknowledging the lack of proof, which might very well be inferred from the lightness of the penalty, he attempts to respond that the said Canon was dealt with more mildly because he was a foreigner and because the crime under consideration had been committed outside of the Ecclesiastical State. In this case one should be dismissed merely with exile. But this response is proved to be without foundation for many reasons.
First, because on account of the well-known privilege of the City of Rome, which is the country of all men, even those may be punished here who have committed crime outside of the Ecclesiastical State, which is subject to the secular authority of the Pope. And this is true, not merely for the handling of criminals, which is permitted to any Prince, but for the trial of the crimes. [Citations.] Cyrill testifies that he himself had so held in 1540, in the Capitolian Court, and Farinacci testifies that it was so held in this same Court in the year 1580, in the case of Gregorio Corso, who had been condemned to the galleys, because he had committed murder in Florence and had come here to Rome, after seizing the horse of the one he had slain. And this was notwithstanding the fact that the cause was very sharply defended for the accused. [Citations.]
Second, because this authority holds good whenever there is argument for punishing crimes committed by churchmen, who are subject to the jurisdiction of the Supreme Pontiff, and in the City can be punished for their crimes with the ordinary penalty, even though the crimes were committed outside of the temporal authority of the Pope. [Citations.] "Rome is a common country and, therefore, in the Roman courts any cleric or layman may be brought to trial, even though he did not commit his crime there." [Citation.]
Third, because inasmuch as it was claimed that the approach to the City and the carrying away of the wife to the same were done because of lust, and to secure greater liberty for knowing her carnally, by taking her from the home of her husband, so the Canon, on account of this purpose, would have subjected himself to penalties such as could really expiate the crime, and which also might be inflicted here in the City; for one is punishable with the same penalty who continues in a crime here, although he put it into effect outside of the State. [Citations.] Caballus [Citation] holds that, for deciding the jurisdiction of a judge over crimes that have been committed, the person offending, rather than the offence, should be considered. [Citation.]
Fourth, because the pretended carnal knowledge, so far as it can be said to be proved in the prosecution (and it can be verified that the decree was changed with relation to that), happened in the Ecclesiastical State; for the strongest proof of that crime was drawn from the asserted sleeping together in the same bedroom at the inn of Castelnuovo. [Citation.] And therefore the Canon could and should have been punished with condign punishment, not merely for his undertaking, but for the adultery, if that had been proved. And since this was not imposed, it may well be asserted that the Canon was not at all condemned for "criminal knowledge," unless one wishes to criticise as unjust that decree, which imposed a mild penalty and one suitable merely to simple running away and complicity in flight, and which was much tempered because of the excuse brought by the Procurator of the Poor. Therefore it may be asserted that the Canon was not condemned for the pretended criminal knowledge, since the nature of the penalty well proves the nature of the crime, with which it should be commensurate, according to Deuteronomy 25: "According to the measure of one's sin shall be the manner of his stripes." [Citations.]