law, that the county in this case should not be charged, unless he were an Englishman that was so slain; but if he were a Frenchman, (under which name were comprehended all foreigners, and especially the Normans,) though the slayer escaped, the county was not to be amerced. And this law, though it were very hard and chargeable, when an Englishman was so slain, for his friend to prove he was an Englishman, and also unreasonable to deny the justice to a stranger, yet was it not repealed till the 14th _Edw. III_. By this you see that murder is distinguished from homicide by the statute laws, and not by any common-law without the statute; and that it is comprehended under the general name of felony. _L._ And so also is petit treason: and I think so is high-treason also. For in the abovesaid statute in the 25th _Edw. III_, concerning treasons, there is this clause: And because that many other like cases of treason may happen in time to come, which a man cannot think or declare at the present time; it is accorded, that if any other case, supposed treason, which is not above specified, doth happen before any of the justices, the justices shall tarry without any going to judgment of the treason, till the cause be shewed and declared before the King and his Parliament, whether it be treason or other felony. Which thereby shews that the King and Parliament thought that treason was one of the sorts of felony. _P._ And so think I. _L._ But Sir Edward Coke denies it to be so at this day. For (_1 Inst. sec. 745_) at the word felony, he saith, that in ancient time this word _felony_ was of so large an extent, as that it included high-treason; but afterwards it was resolved, that in the King’s pardon or charter, this word _felony_ should extend only to common felonies; and at this day, under the word felony, by law is included petite treason, murder, homicide, burning of houses, burglary, robbery, rape, &c. chance medley, _se defendendo_, and petite larceny. _P._ He says it was resolved: but by whom? _L._ By the justices of assize in the time of Henry IV, as it seems in the margin. _P._ Have justices of assize any power by their commission to alter the language of the land and the received sense of words? Or in the question in what case felony shall be said, is it referred to the judges to determine; as in the question in what case treason shall be said, it is referred by the statute of Edward III to the Parliament? I think not; and yet perhaps they may be obliged to disallow a pardon of treason, when mentioning all felonies it nameth not treason, nor specifies it by any description of the fact. _L._ Another kind of homicide there is, simply called so, or by the name of manslaughter, and is not murder: and that is, when a man kills another man upon sudden quarrel, during the heat of blood.