Ch, 14. WRONGS. 191
1. MANSLAUGHTER is therefore thus defined", the unlaw- ful killing of another, without malice either exprefs or implied : which may be either voluntarily, upon a fudden heat ; or invo- luntarily, but in the commiflion of fome unlawful a6t. Thefe were called in the Gothic conftitutions " homicidta. Bulgaria ; quae " aut cafu, aut etlam Jponte conmnttiintur, Jed infubitaneo quodam " iracundiae calore et impetu ." And hence it follows, that in manflaughter there can be no accelTories before the fact ; becaufe it muft be done without premeditation.
As to the firft, or voluntary branch : if upon a fudden quar- rel two peribns 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 this is one continued act of pafiion x : and the law pays that regard to human frailty, as not to put a hafty and a deliberate adt upon the fame footing with regard to guilt. So alfo if a man be greatly provoked, as by pulling his nofe, or other great indignity, and immediately kills the aggref- for, though this is not excufableyj defettdendo, fince there is no abfolute necefTity for doing it to preferve himfelf ; yet neither is it murder, for there is no previous malice ; but it is manflaugh- ter y . But in this, and in every other cafe of homicide upon provocation, if there be a fufficient cooling-time for paflion to lubiide and reafon to interpofe, and the perlbn fo provoked after- wards kills the other, this is deliberate revenge and not heat of blood, and accordingly amounts to murder 2 . So, if a man takes another in the aft of adultery with his wife, and kills him di- reftly upon the fpot ; though this was allowed by the laws of Solon % as likewile by the Roman civil law, (if the adulterer was found in the hufband's own houfe b ) and alfo among the antient Goths c ; yet in England it is not abfolutely ranked in the clafs
- i Hal. P. c. 466.
w Stiernh. de jure Gotb. I. 3, c. 4.
- i Kawk. P. C. 82.
- Kelyng. 135.
z Foft. 296. 4 Plutarch, in fit. Solon. Ff. 48. 5. 24. ' Stiernh. de jure Gt,tb. I. 3. t. ^.
Of
