Common Places, Part 2 · Chapter 9 · Section 2
Of Homicide, or Manſlaughter.
In Iudges. 9, verſe. 24.2 Here will I treate of two things; the firſt, what maner of man-ſlaughter is condemned 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 vnderſtand, 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 incurreth not the puniſhment of man-ſlaughter. Wherefore, in the old lawe, there were granted cities of refuge. Numb. 35, 6.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 offenders, is not to be accounted a man-ſlear: for it is not he that killeth, but the lawe; yea rather God himſelfe, who would hauehave it ſo doone, and ſo commanded it. Furthermore, he that in a deſolate place, or where he cannot be holpen by others, is ſet vponupon 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 ſubiect ſhould ſo periſh: therfore it giueth him leaue to defend himſelfe by weapons. For this cauſe Cicero defended Milo, Cicero.bicauſe he had killed Clodius, who firſt by a ſecret lieng in wait ſet vponupon him. 2. Sam. 14, 6Alſo 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, commit 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 purpoſe is killed by priuate men. And they, which are to be condemned of this crime by the Romane lawes, are not called man-ſtears, but murtherers. In the lawe Cornelia, the title is De ſicarijs; and not De homicidis: Who be murtherers.and they are ſo called, which doo weare about them a ſhort ſkeine to kill a man. And by the figure Synecdoche, vnderunder the name of a ſhort ſkeine, is vnderſtood 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 hauehave reſpect herevnto, that ſome man ſhould be killed: yea, In this offenſe the will is to be puniſhed.the will is to be puniſhed, though it had not this purpoſe. 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 intent he would kill him; or hauing that mind, woundeth him, though the partie die not thereof: as we hauehave it in the Digeſts, in the ſame title, in the lawe Diuus; where Adrian the emperour maketh anſwer, that we muſt hauehave 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, Matth. 5, 2…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 canons doo decrée. Ierom vponupon Eſaie, Ierom.as it is in the title Poenitentia, diſtinction the firſt, chap. Omnis habet; Thou haſt not killed with the ſword, but thou haſt killed with the will. Cyprian.Yea and Cyprian in his ſermon De mortalitate, writeth; He that deſireth martyrdome, is a martyr before God. It is one thing (ſaith he) for the will to want martyrdome, and an other thing for martyrdome to want the will. Theſe things are found in the ſame diſtinction, in the chapter Nunquid. And in the ſame place, in the chapter Periculosè, Auguſtine is cited, Auguſtine.who ſaith; that the Iewes no leſſe killed Chriſt, than the Romans did; although they laid not hands vponupon him. By this diſtinction he accordeth the two euangeliſts, who ſéeme to diſagrée touching the houre of the Lords death. Mark. 15, 25The one ſaith, that he was nailed in the third houre; the other ſaith, in the ſixt houre. Luk. 23, 44.Auguſtine affirmeth both to be true: for the Iewes, at the third houre cried; Crucifie, crucifie. Wherefore as concerning them, they then killed the Lord, who neuertheleſſe was crucified afterward in the ſixt houre, by the ſoldiers of Pilat.