the unlawful killing of another, without malice either express or implied: Which may be either voluntary, upon a sudden heat; or involuntary, but in the commission of some unlawful act. These were called, in the Gothic constitutions, homicidia vulgaris; quae aut cafu, aut etiam sponte committuntur, sed in subitaneo quadam iracundie calore et impetu. And hence it follows, that in manslaughter there can be no accessories before the fact; because it must be done without premeditation.

1. As to the first, or voluntary branch: If upon a sudden quarrel two persons fight, and one of them kills the other, this is manslaughter: and so it is, if they upon such an occasion go out and fight in a field; for this is one continued act of passion; 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 de 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. 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. 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 law of Solon, as likewise by the Roman civil law (if the adulterer was found in the husband's own house), and also among the ancient Goths; 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. 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. Manlaughter, therefore, on a sudden provocation, differs from excusable homicide de defendendo in this: That in the one case there is apparent necessity, for self-preservation, to kill the aggressor; in the other no necessity at all, being only a sudden act of revenge.

2. The second branch, or involuntary manslaughter, differs also from homicide excusable by misadventure, in this: That misadventure always happens in consequence of a lawful act, 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. So where a person does an act, lawful in itself, but in an unlawful manner, and without due caution and circumpection; 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 towns, where people are continually passing, it is manslaughter, though he gives loud warning; and murder, if he knows of their passing and gives no warning at all, for then it is malice against all mankind. And, in general, when an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter according to the nature of the act which occasioned it. If it be in prosecution of a felonious intent, or in its consequences naturally tending to bloodshed, it will be murder; but if no more was intended than a mere civil trespass, it will only amount to manslaughter.

3. 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.

But there is one species of manslaughter, which is punished as murder, the benefit of clergy being taken away from it by statute; namely, the offence of mor-