260 I-I O M I 
the great univerfal principle of felf-prefervation, which 
prompts every man to fave his own life preferably to that 
of another, where one of them mult inevitably perilh. 
As, among others, in that cafe mentioned by lord Bacon, 
where two perfons being lhipwrecked, and getting on the 
fame plank, but finding it not able to lave them both, 
one of tfiem thrults the other from it, whereby he is 
drowned. He who thus preferves his own life at the ex¬ 
pence of another man’s, is excufable, through unavoid¬ 
able neceflity, and the principle of felf-defence; fince 
their both remaining on the lame weak plank is a mu¬ 
tual, though innocent, attempt upon, and endangering of, 
each other’s life. 4. Btackfl. Comm. c. 14. 
The circumilances wherein thefe two fpecies of homi¬ 
cide, by inifadventure and felf-defence, agree, are in the 
blame and punifhment. For the law fets fo high a value 
upon the life of a man, that it always intends fome mil- 
behaviour in the perfon who tfikes it away, unlefs by the 
command or exprefs permiffion of the law. In the cafe 
of mifadventurp, it prel'umes negligence, or at lealt a want 
of fulficient caution, in him who was fo unfortunate as to 
commit it; who is therefore not altogether faultlefs. 
And as to the neceflity which excufes a man who kills 
another fe defendcndo, lord Bacon entitles it nectjfitas culpa- 
bilh ', and thereby diltinguilhes it from the former neceflity 
of killing a thief or a malefactor. Bac. E/cm. c. 5. For the 
law intends that the quarrel or alfault arofe from fome un¬ 
known wrong, or fome provocation, either in word or 
deed; and fince, in quarrels, both parties may be, and 
ulually are, in fome fault, and it fcarcely can be tried 
who was originally in the wrong, the law will not hold 
the furvivor entirely guiltlefs. But it is clear, in the other 
cafe, that, where I kill a thief that breaks into my houfe, 
the original fault can never be upon my lide. The law 
befides may have a further view, to make the crime of 
homicide more odious, and to caution men how they ven¬ 
ture to kill another upon their own private judgment, by 
ordaining that he who flays his neighbour, without an 
exprefs warrant from the law fo to do, lhall in no cafe be 
abfolutely free from guilt. 
3. Felonious Homicide, is an aft of a very different 
nature from the two former, being the killing of a human 
creature, of any age or fex, without julfification or ex- 
cule. This offence may be committed either by killing 
one’s felf, or another perfon. Self-murder is jultly ranked 
among the highelt crimes ; but the party muft be of years 
of diferetion, and in his fenfes, othervvife it is no crime. 
As to the punifhment w'hich human law's inflift on this 
crime; they can only aft upon what he has left behind him, 
his reputation and fortune ; on the former, by an ignomi¬ 
nious burial in the highway, with a flake driven through 
his body; on the latter, by the forfeiture of all his goods 
and chattels to the king. Our laws have always had fuch 
an abhorrence of this crime, that not only he who kills 
himfelf with a deliberate and direft purpofe of fo doing, 
but alfo in fome cafes he who malicioufly attempts to kill 
another, and in purluance of fuch an attempt unwillingly 
kills himfelf, (hall be adjudged in the eye of the law a felo 
de fe,; for, wherever death is caufed by any aft done with 
a murderous intent, it makes the offender a murderer, 
j Hawk. P. C. c. 27. By .the rubric in the Common Prayer, 
before the burial office, (confirmed by flat. 13 and 14 
Car. II c. 4.) perfons who have laid violent hands upon 
themfelves lhall n t have that office ufed at their inter¬ 
ment. See the article Felo de se, vol. vii. p. 30;. 
Manjlaughter, is the unlawful killing of another, with¬ 
out malice, either exprefs or implied ; which may be either 
voluntarily, upon a fudden heat; or involuntarily, but in 
the commilfion of *fome unlawful aft. 1 Hal. P. C. 466. 
And hence it follows, that in manflau'ghter there can be 
no acceffpries before the faff; becaule it mult be done 
without premeditation. As fo the voluntary branch; if 
upon a Judden quarrel two perions fight, and one of them 
kills the other, this is manflaughter ; and fo it is, if they, 
upon fuch an occafion go out and fight in a field; for 
C I D 
this is one continued aft of paflion, and the law pays that 
regard to human frailty, as not to put a haffy and deli¬ 
berate aft upon the fame footing with regard to guilt. 
1 Hawk. P. C.c. 31. So alfo if a man be greatly provoked, 
as by pulling his nofe, or other great indignity, and im¬ 
mediately kills the aggrefl'or, though this is not excufable 
fe defendcndo, fince there is no abfolute neceflity for doing 
it, to preferve himfelf; yet neither is it murder, for there 
is no previous malice ; but it is manflaughter. Kelyng. 135. 
But in this, and in every other cafe of homicide upon 
provocation, if there be a fufficient cooling-time for paf- 
lion to fublide, and reafon to interpofe, and the perfon fo 
provoked afterwards kills the other, this is deliberate re¬ 
venge, and not heat of blood, and accordingly amounts to 
murder. Fojl. zy6. So if a man takes another in the aft 
of adultery with his wife, and kills him direftly upon the 
fpot; this is not abfolutely ranked in the clafs of juftifi- 
able homicide, as in cafe of a forcible rape, but it is man¬ 
flaughter. 1 Hal. P. C. 486. It is however the loweft de¬ 
gree of it, and therefore-in fuch a cafe, the court direfts 
the fmalleft fine to be inflicted, becaufe there cannot be a 
greater provocation. Raym. z\z. 
The fecond branch, or involuntary manflaughter, differs 
alfo from homicide excufable by inifadventure, in this ; 
that inifadventure always happens in confequence of a 
lawful aft; but this fpecies of manflaughter in confe¬ 
quence of an unlawful one. As if two perfons play at 
fwordy and one of them kills the other; this is manflaugh¬ 
ter, becaufe the original aft was unlawful; but it is not 
murder, for the one had no intent to do the other any 
perfonal mifehief. 3 Injl. 56. So where a perfon does an 
aft, lawful in itfelf, but an unlawful manner, and with¬ 
out due caution and circumi’peftion; as when a work¬ 
man flings down a ftone or piece of timber into the ftreet, 
and kills a man; this may be either mifadventure, man¬ 
flaughter, or murder, according to the circumftance under 
which the original aft was done : if it were in a country 
village where few paifengers are, and he calls out to all 
people to have a care, it is mifadventure only; but if it 
were in London, or other populous town, where people 
are continually pafling, it is manflaughter, though he 
gives loud warning ; and murder, if he knows of their 
pafling, and gives no warning at all, for then it is malice 
againlt all mankind. Kel. 43. 3 Injl. And, in general, 
when an involuntary killing happens in confequence of 
an unlawful aft, it will be either murder, or manflaugh¬ 
ter, according to the nature of the aft which occalioned 
it. If it be in profecution of a felonious intent, or in its 
confequences naturally tending to blood (bed, it will be 
murder; but, if no more was intended than a mere civil 
trefpafs, it will only amount to manflaughter. 4 Blackjl. 
Comm. c. 14. 
Our ftatute law has feverely animadverted on one fpe¬ 
cies of criminal negligence, whereby the death of a man 
is occafioned. For by flat. 10 Geo. II. c. 31, if any water¬ 
man between Gravefend and Windfor receives into his 
boat or barge a greater number of perfons than the aft 
allows, and any paffenger lhall then be drowned, fuch wa¬ 
terman is guilty (not of manflaughter, but) of felony ; 
and lhall be tranfported as a felon. 
There is one fpecies of manflaughter, which is puniflied 
as murder, the benefit of clergy being taken away from it 
by ltatute ; namely, the offence of mortally ftabbing an¬ 
other, though done upon fudden provocation. For by 
flat. 1 Jac. I. c. 8, when one thrufts or ltabs another, who 
has not then a weapon drawn, or who hath not then firft 
Itricken the party (tabbing, lb that he dies thereof within 
fix months after, the offender fliall not have the benefit of 
clergy, though he did it not of malice aforethought. 
This ftatute was made on account of the frequent quar¬ 
rels, and (tabbing with fhort daggers, between the Scotch 
and the Englilh, at the acceflion of James 1 . and, being 
therefore of a temporary nature, ought perhaps to have 
expired with the mifehief which it meant to remedy, 
i Lord Raym 140. It was however continued indefinitely 
