But whatever Caballus [Citation] may say to the contrary, he bases his opinion upon Castro and Rollandus. Castro, however, favours our opinion, as is to be seen in No. 3. Rollandus should not be given heed; for when he offers this very same opinion about the statute which permits any one to take vengeance; and says that since this kind of permission is personal, it cannot be passed on from one to another, this opinion of his is expressly contrary to the teaching of Baldo, Castro, Jason, and others, whom we have alleged above in paragraph quae dicta sunt. And since this opinion of ours is milder and more equitable, it should hold good, as Jason decides on this point. [Citation.]
Nor can the punishment be increased because of the alleged carrying of prohibited arms; because the latter offence is included then with the real crime. [Citations.] In Guazzin we read that this is so, even if for the carrying of the arms a greater penalty would be inflicted [than for the principal offence]. And so, whenever it is evident that the crime has been committed for honour's sake and for a just grievance, as in the present case, the carrying of the arms may go unpunished, or at least it should not be punished with a more severe penalty than should be imposed for the principal crime itself. Thus Policardus [Citation] well affirms when speaking of arms which are considered treacherous by the Banns.
These claims should hold good more readily as regards Domenico and Francesco, who are foreigners, and are therefore not included in any of the Apostolic Constitutions or Banns, which prohibit the bearing of arms under very heavy penalties. [Citations.]
Especially since they are minors, as is made clear in the course of the trial, pp. 35 and 304; in which case they are likewise not bound by these Constitutions and Banns, which give judgment upon the crime of a minor. For the power to make and establish such regulations was lacking in the Prince or public official concerned. [Citations.]
Such are the matters which, in view of the excessive scantiness of time, I have been able to collect in discharge of my duty for the defence of these poor prisoners. Nor do I at all distrust that my Lords Judges, when they see that too little has been said, will wish to supply and offer what is lacking out of the high rectitude for which they are distinguished. For this would be quite in accord with the decree of Emperors Diocletian and Maximian, as related. [Citation.] And they will follow the advice of Hippolitus Marsilius, famous in criminal proceedings, who says that a judge is obliged by his office to seek out grounds of defence for the accused. [Citations.]
Desiderio Spreti, Advocate for the Poor.
By the Most Illustrious and Most
Reverend Lord Governor in
Criminal Cases:
ROMAN MURDER-CASE.