_P._ But if the unlawfulness of the action, as the stealing of the apples, did not cause the death of the man; then the stealing, be it trespass or felony, ought to be punished alone, as the law requireth. _L._ But for the killing of a man _se defendendo_, the jury, as Sir Edward Coke here says, shall not in their verdict say it was _se defendendo_, but shall declare the manner of the fact in special, and clear it to the judge to consider how it is to be called, whether _se defendendo_, manslaughter, or murder. _P._ One would think so; for it is not often within the capacity of a jury, to distinguish the signification of the different hard names which are given by lawyers to the killing of a man: as murder and felony, which neither the laws, nor the makers of the laws, have yet defined. The witnesses say, that thus and thus the person did, but not that it was murder or felony; no more can the jury say, who ought to say nothing but what they hear from the witnesses or from the prisoner. Nor ought the judge to ground his sentence upon anything else besides the special matter found, which, according as it is contrary or not contrary to the statute, ought to be pronounced. _L._ But I have told you, that when the jury has found misfortune or _se defendendo_, there is no judgment at all to be given, and the party is to be pardoned of course, saving that he shall forfeit his goods and chattels, debts and duties, to the King. _P._ But I understand not how there can be a crime for which there is no judgment, nor how any punishment can be inflicted without a precedent judgment, nor upon what ground the sheriff can seize the goods of any man, till it be judged that they be forfeited. I know that Sir Edward Coke saith, that in the judgment of hanging, the judgment of forfeiture is implied, which I understand not; though I understand well enough, that the sheriff by his office may seize the goods of a felon convicted; much less do I conceive how the forfeiture of goods can be implied in a no-judgment; nor do I conceive, that when the jury has found the special manner of the fact to be such as is really no other than _se defendendo_, and consequently no fault at all, why he should have any punishment at all. Can you show me any reason for it? _L._ The reason lies in the custom. _P._ You know that unreasonable customs are not law, but ought to be abolished; and what custom is there more unreasonable, than that a man should be punished without a fault? _L._ Then see the statute of 24 _Hen. VIII_, _c._ 5.