: quarrel, or un cation; this is manslaughter: and so it is, if they upon such an occa- der great provosion go out and fight in a field; for this is one continued act of passion (x) and the law pays that regard to human frailty, as not to put a hasty and deliberate act upon the same footing with regard to guilt. So also if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though this is not excusable se defendendo, since there is no absolute necessity for doing it to preserve himself; yet neither is it murder, for there is no previous malice; but it is manslaughter (y) (24). But in this, and in every other case of homicide, upon provocation, if there be a sufficient cooling-time for passion to subside and reason to interpose, and the person so provoked afterwards kills the other, this is deliberate revenge and not heat of blood, and accordingly amounts to murder (z). So if a man takes another in the act of adultery with his wife, and kills him directly upon the spot; though this was allowed by the laws of Solon (a), as likewise by the Roman civil law, if the adulterer was found in the husband's own house (b), and also among the ancient Goths (c); yet in England it is not absolutely ranked in the class of justifiable homicide, as in case of a forcible rape, but it is manslaughter (d). It is however the lowest degree of it; and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation (e). Manslaughter therefore on a sudden provocation differs from excusable homicide se defendendo in this: that in one case there is an apparent necessity, for self-preservation, to kill the aggressor; in the other no necessity at all, being only a sudden act of revenge (25). [*192] The second branch, or involuntary manslaughter, differs or involuntary also from homicide excusable by misadventure, in this; that by an act law as killing a man done in an un ful in itself, but misadventure always happens in consequence of a lawful act, lawful manner; but this species of manslaughter in consequence of an unlawful one. As if two persons play at sword and buckler, unless by the king's command, and one of them kills the other; this is manslaughter, because the original act was unlawful, but it is not murder, for the one had no intent to do the other any personal mischief (f). So where a person does an act, lawful in itself, but in an unlawful manner, and without due caution and circumspection: as when a workman flings down a stone or piece of timber into the street, and kills a man; this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done if it were in a country village, where few passengers are, and he calls out to all people to have a care, it is misadventure only; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning (g); and murder, if he knows of their passing, and gives no warning at all, for then it is malice against all mankind (h). And, in general, when an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter (i) ac (f) 3 Inst. 56. (g) Kel. 40. (h) 3 Inst. 57. (i) Our statute law has severely animadverted on one species of criminal negligence, whereby the death of a man is occasioned. For by statute 10 Geo. II. c. 31, if any waterman be * Repealed, together with all other Acts for the regulation of watermen plying upon the river Thames, (vide ante, 64, note (27), by 7 and 8 Geo. IV. c. 75; section 38 of which, after providing that no boat, &c., for carrying passengers on the river Thames, shall be used without a licence, expressing the number of persons it may be allowed to carry, and that the number and name of the owner shall be painted thereon, and imposing a penalty for infringing those provisions, enacts, that in case any greater number of passengers shall be carried in any boat, &c. than is allowed, and any one or more tween Gravesend and Windsor receives into his boat or barge a greater number of persons than the Act allows, and any passenger shall then be drowned, such waterman is guilty, not of manslaughter, but of felony, and shall be transported as a felon. of them shall by reason thereof be drowned, every person navigating such boat, &c., offending therein, and being thereof lawfully convicted, shall be deemed guilty of a misdemeanor, and shall be liable to such punishment as in cases of misdemeanor, at the discretion of the court; and shall be disfranchised, and not allowed thereafter to navigate any boat, &c. on the river Thames. It had been doubted whether a conviction, under the old statute, of a waterman for carrying in his boat, upon the river Thames, more persons than are by law allowed, must or must not proceed upon testimony given on oath. cording to the nature of the act which occasioned it. If it be in prosecution of a felonious #intent, or in its consequences [193] naturally tended to bloodshed, it will be murder; but if no more was intended than a mere civil trespass, it will only amount to manslaughter (j) (26). (j) Foster, 258; 1 Hawk. P. C. 84. (26) See the cases cited, ante 183, et seq., in notis. Accidental homicide may be murder, if it happen in the prosecution of an illegal act; as in carrying away furniture to avoid a distress for rent; Rex v. Hodgson, 1 Leach, 6; 1 East, P. C. 258. The following are very recent decisions upon the subject of manslaughter: All persons who by their presence encourage a fight from which death ensues to one of the combatants, are guilty of manslaughter, although they neither say nor do anything. But if the death be caused not by blows given in the fight itself, but by other parties breaking the ring, and striking the deceased with bludgeons, the persons who merely encourage the fight by their presence are not answerable; Rex v. Murphy, 6 C. & P. 103. In a case of manslaughter, after the jury were charged, it was ascertained that the surgeon who examined the body was absent. The prisoner's counsel asked that the jury should be discharged. It was held that if the prisoner asked that the jury should be discharged, the judge had authority to order it to be done; Rex v. Stokes, 6 C. & P. 151. A. was charged with manslaughter in killing B. by driving a cabriolet over him. C. saw the cabriolet pass, but did not see the accident; and immediately afterwards, on hearing B. groan, C. went up to him, when B. made a statement as to how the acci and, therefore, in Rer v. Broderip, 5 B. & C. 239; 7 D. & R. 861; the court of K. B. refused a mandamus VOL. IV. dent had happened. It was held that this statement was receivable in evidence on the trial of A.; Rex v. Foster, 6 C. & P. 325. A. being on board a ship, and B. in a boat alongside, had a dispute about payment for some goods, both being intoxicated. A., to get rid of B., pushed away the boat with his foot; B., reaching out to lay hold of a barge, to prevent his boat from drifting away, over balanced himself, and fell into the water, and was drowned. A. was charged with manslaughter on the coroner's inquisition. It was held, on the trial, that these facts did not constitute that offence; Rex v. Waters, 6 C. & P. 328. In order to render a declaration in articulo mortis admissible in a case of manslaughter, it is not necessary to prove expressions of the deceased, that he was in apprehension of almost immediate death; but the judge will consider from all the circumstances whether the deceased had, or had not, any hope of recovery; Rex v. Bonner, 6 C. & P. 386. If A. and B. are riding fast along a highway, as if racing, and A. rides by without doing any mischief, but B. rides against the horse of C., whereby C. is thrown, and killed; this is not manslaughter in A.; Rex v. Mastin, 6 C. & P. 396. A foot passenger was walking at lamp-light in the carriage-road along a public highway, when the owner of a T to a magistrate to compel him to enforce such a conviction. The new statute removes this doubt; see § 74. stabbing, a peculiar species of Next, as to the punishment of this degree of homicide: the crime of manslaughter amounts to felony, but within the benefit of clergy; and the offender shall be burnt in the hand, and forfeit all his goods and chattels (27). But there is one species of manslaughter, which is punished manslaughter. as murder, the benefit of clergy being taken away from it by statute; namely, the offence of mortally stabbing another, though done upon sudden provocation. For by statute 1 Jac. I. c. 8, when one thrusts or stabs another, not then having a weapon drawn, or who hath not then first stricken the party stabbing, so that he dies thereof within six months after, the offender shall not have the benefit of clergy, though he did it not of malice aforethought. This statute was made on account of the frequent quarrels and stabbings with short daggers, between the Scotch and English, at the accession of James the first (k); and, being therefore of a temporary nature, ought to have expired with the mischief which it meant to remedy. For, in point of solid and substantial justice, it cannot be said that the mode of killing, whether by stabbing, strangling, or shooting, can either extenuate or enhance the guilt: unless where, as in the case of poisoning, it carries with it an internal evidence of cool and deliberate malice. But the benignity of the law hath construed the (k) 1 Lord Raym. 140. cart, who was proved to be near-sighted, In a case of death by stabbing, if A servant of C. attempted to appre hend A., who was out at night poaching in a wood, and was killed by A. C. was neither the owner nor occupier of the wood, nor the lord of the manor, having only the permission of the owner to preserve game there. It was held that this was only manslaughter in A. ; Rex v. Addis, 6 C. & P. 388. (27) By 9 Geo. IV. c. 31, § 9, (repealing all former enactments on this subject,) every person convicted of manslaughter shall be liable, at the discretion of the court, to be transported beyond seas for life, or for any term not less than seven years, or to be imprisoned, with or without hard labour, for any term not exceeding four years, or to pay such fine as the court shall award. statute so favourably in behalf of the subject, and so strictly when against him, that the offence of stabbing now stands almost upon the same footing as it did at the common law (1). Thus, (not to repeat the cases before mentioned, of stabbing an adulteress, &c. which are barely manslaughter, as at common law,) in the construction of this statute it hath been doubted, whether, if the deceased had struck at all before the mortal blow given, this does not take it out of the statute, though in the preceding quarrel the stabber had given the first blow; and it seems to be the better opinion, that this is not within the statute (m). Also it hath been resolved, that the killing a man by throwing a hammer, or other blunt weapon, is not within the statute; and whether a shot with a pistol be so or not, is doubted (n). But if the party slain had a cudgel in his hand, or had thrown a pot or bottle, or discharged a pistol at the party stabbing, this is a sufficient having a weapon drawn on his side within the words of the statute (o) (28). (1) Fost. 299, 300. (m) Fost. 301. 1 Hawk. P. C. 77. (n) I Hal. P. C. 470. [*194] (28) The 1 J. I. c. 8, together with the 43 G. III. c. 58, (Lord Ellenborough's Act,) and the 1 G. IV. c. 90, relating to the same subject, is repealed by 9 G. IV. c. 31; by § 11 of which it is enacted, that if any person unlawfully and maliciously shall administer, or attempt to administer to any person, or shall cause to be taken by any person, any poison or other destructive thing, or shall unlawfully and maliciously attempt to drown, suffocate, or strangle any person, or shall unlawfully and maliciously shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person, with intent, in any of the cases aforesaid, to murder such person, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon. And by § 12, it is enacted, that if any person unlawfully and mali. ciously shall shoot at any person, or shall, by drawing a trigger, or, in any other manner, attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person, with intent, in any of the cases aforesaid, to maim, disfigure, or disable such person, or to do some other grievous bodily harm to such person, or with intent to resist or prevent the lawful apprehension or detainer of the party so offending, or of any of his accomplices, for any of fence for which he or they may respectively be liable by law to be appre hended or detained, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon; provided, that in case it shall appear, on the trial of any person indicted for any of the offences above specified, that such acts |