_P._ If two meeting in the street chance to strive who shall go nearest to the wall, and thereupon fighting, one of them kills the other, I believe verily he that first drew his sword, did it of malice forethought, though not long forethought; but whether it be felony or no, it may be doubted. It is true, that the harm done is the same as if it had been done by felony; but the wickedness of the intention was nothing near so great. And supposing it had been done by felony, then it is manifest, by the statute of Marlebridge, that it was very murder. And when a man for a word or a trifle shall draw his sword and kill another man, can any man imagine that there was not some precedent malice? _L._ It is very likely there was malice, more or less: and therefore the law hath ordained for it a punishment equal to that of murder, saving that the offender shall have the benefit of his clergy. _P._ The benefit of clergy comes in upon another account, and importeth not any extenuation of the crime. For it is but a relic of the old usurped papal privilege, which is now by many statutes so pared off, as to spread but to few offences, and is become a legal kind of conveying mercy, not only to the clergy, but also to the laity. _L._ The work of a judge, you see, is very difficult, and requires a man that hath a faculty of well distinguishing of dissimilitudes in such cases as common judgments think to be the same. A small circumstance may make a great alteration; wherefore a man that cannot well discern, ought not to take upon him the office of a judge. _P._ You say very well; for if judges were to follow one another’s judgments in precedent cases, all the justice in the world would at length depend upon the sentence of a few learned, or unlearned, ignorant men, and have nothing at all to do with the study of reason. _L._ A third kind of homicide is when a man kills another, either by misfortune, or in the necessary defence of himself, or of the King, or of his laws; for such killing is neither felony nor crime, saving, as Sir Edward Coke says (_3 Inst. p. 56_), that if the act that a man is doing, when he kills another man, be unlawful, then it is murder. As, if A meaning to steal a deer in the park of B, shooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in a bush, this is murder, for that the act was unlawful; but if the owner of the park had done the like, shooting at his own deer, it had been by misadventure, and no felony.