Of Homicide, or Man∣slaughter.
* 1.1 2 Here will I treate of two things; the first, what maner of man-slaughter is condem∣ned by the word of God, and to be punished by the magistrates; secondlie, who are guiltie of this crime. As touching the first, we must vn∣derstand, that not euerie slaughter of man is condemned. For if one kill a man by chance, in exercising of an honest and lawfull thing, he in∣curreth not the punishment of man-slaughter. Wherefore, in the old lawe, there were granted cities of refuge. * 1.2 For in verie déed, he killeth not: but as it is there written; God (without whose will nothing is doone by chance) deliuered him, that he should so be killed. A iudge also and a magistrate, when he punisheth heinous offen∣ders, is not to be accounted a man-slear: for it is not he that killeth, but the lawe; yea rather God himselfe, who would haue it so doone, and so commanded it. Furthermore, he that in a deso∣late place, or where he cannot be holpen by o∣thers, is set vpon by théeues or enimies: if, in defending himselfe, & according to the lawes, by repelling violence by violence, he slaie a robber or théefe, which inuadeth him; he is not guiltie of man-slaughter, forsomuch as in that case, he is armed both by the lawes & the magistrates. For the Common-weale would not, that a sub∣iect should so perish: therfore it giueth him leaue to defend himselfe by weapons. For this cause Cicero defended Milo, * 1.3 bicause he had killed Clodius, who first by a secret lieng in wait set vpon him. * 1.4 Also the woman of Thecua obteined of Dauid, that the magistrate should not kill hir sonne, who had slaine his brother being at variance with him in the féeld; They were alone (saith she) and therefore it is not knowne, which of them first inuaded the other. Soldiers also, when in a iust war they slea their enimie, com∣mit no vniust thing.
Wherefore, that man-slaughter, which must be punished, and is condemned by lawes, is then iudged to be doone, when a man of set pur∣pose is killed by priuate men. And they, which are to be condemned of this crime by the Ro∣mane lawes, are not called man-stears, but murtherers. In the lawe Cornelia, the title is De sicarijs; and not De homicidis: * 1.5 and they are so called, which doo weare about them a short skeine to kill a man. And by the figure Synecdo∣che, vnder the name of a short skeine, is vnder∣stood euerie kind of weapon. And not onelie they which kill, are guiltie of this crime; but also they which either by déed, or by counsell doo helpe, and in their saiengs and assistance haue respect here∣vnto, that some man should be killed: yea, * 1.6 the will is to be punished, though it had not this pur∣pose. But this in ciuill iudgement is not vsed, except in thrée kinds of crimes onelie; to wit, of murtherers, of rauishers, and of traitors. Wherefore, that murtherer is to be punished, which throweth a weapon at anie man, to the in∣tent he would kill him; or hauing that mind, woundeth him, though the partie die not there∣of: as we haue it in the Digests, in the same ti∣tle, in the lawe Diuus; where Adrian the empe∣rour maketh answer, that we must haue respect to the will, and not to the euent. But that is vnderstood, when the will manifesteth it selfe by anie apparant token. Yet I did not without cause saie, that these things are thus concerning ciuill iudgment: bicause otherwise, before God, the desire and determination of the mind, as touching all kind of sinnes, is condemned for sinne. Christ saith; He that beholdeth a woman, * 1.7 and lusteth after hir, hath alreadie committed adulterie in his hart.
And that the will, in those crimes, is estéemed as the fact, euen the holie fathers, and the ca∣nons doo decrée. Ierom vpon Esaie, * 1.8 as it is in the