_P._ See what it is for a man to distinguish _felony_ into several sorts, before he understands the general name of felony, what it meaneth. But that a man, for killing another man by misfortune only, without any evil purpose, should forfeit all his goods and chattels, debts and duties, is a very hard judgment, unless perhaps they were to be given to the kindred of the man slain, by way of amends for damage. But the law is not that. Is it the common-law, which is the law of reason, that justifies this judgment, or the statute-law? It cannot be called the law of reason, if the case be mere misfortune. If a man be upon his appletree to gather his apples, and by ill-fortune fall down, and lighting on the head of another man, kill him, and by good fortune save himself; shall he for this mischance be punished with the forfeiture of his goods to the King? Does the law of reason warrant this? He should, you will say, have looked to his feet; that is true; but so should he, that was under, have looked up to the tree. Therefore in this case the law of reason, as I think, dictates that they ought each of them to bear his own misfortune. _L._ In this case I agree with you. _P._ But this case is the true case of mere misfortune, and a sufficient reprehension of the opinion of Sir Edward Coke. _L._ But what if this had happened to be done by one, that had been stealing apples upon the tree of another man? Then, as Sir Edward Coke says (3 _Inst._ _p._ 56), it had been murder. _P._ There is indeed great need of good distinction in a case of killing by misfortune. But in this case the unlawfulness of stealing apples cannot make it murder, unless the falling itself be unlawful. It must be a voluntary unlawful act that causeth the death, or else it is no murder by the law of reason. Now the death of the man that was under the tree, proceeded not from that, that the apples were not his that fell, but from the fall. But if a man shoot with a bow or a gun at another man’s deer, and by misfortune kill a man, such shooting being both voluntary and unlawful, and also the immediate cause of the man’s death, may be drawn, perhaps well enough sometimes, to murder by a judge of the common-law. So likewise if a man shoot an arrow over a house, and by chance kill a man in the street, there is no doubt but by the law of reason it is murder: for though he meant no malice to the man slain, yet it is manifest that he cared not whom he slew. In this difficulty of finding out what it is that the law of reason dictates, who is it that must decide the question? _L._ In the case of misfortune, I think it belongs to the jury; for it is matter of fact only. But when it is doubtful whether the action from which the misfortune came, were lawful or unlawful, it is to be judged by the judge.