Ch. 14, WRONGS. 193 Intent, it will be murder ; but if no more was intended than a mere trefpafs, it will only amount to manflaughter'.
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.
BUT there is one fpecies of manflaughter, which is punifhed as murder, the benefit of .clergy being taken away from it by ftatute; namely, the offence of mortally Jtabbing another, though done upon fudden provocation. For by ftatute i Jac. I. c. 8. when one thrufts or ftabs another, not then having a weapon drawn, or who hath not then firft ftricken the party flabbing, fo that he dies thereof within fix months after, the offender (hall not have the benefit of clergy, though he did it not of malice aforethought. This ftatute was made on account of the frequent quarrels and ftabbings with fhort daggers, between the Scotch and the Englifh, at the acceflion of James the firft k ; and, being therefore of a temporary nature, ought to have expired with the mifchief, which it meant to remedy. For, in point of folid and fubftantial juftice, it cannot be faid that the mode of killing, whether by (tabbing, ftrangling or mooting, can either exte- nuate or enhance the guilt : unlefs where, as in the cafe of poi- foning, it carries with it an internal evidence of cool and delibe- rate malice. But the benignity of the law hath conftrued the ftatute fo favourably in behalf of the fubjedt, and fo ftridtly when againft him, that the offence of ftabbing ftands almoft upon the fame footing, as it did at the common law 1 . Thus, (not to re- peat the cafes before-mentioned, of ftabbing an adulterefs, &c. which are barely manllaughter, as at common-law) in the con- itruction of this ftatute it hath been doubted, whether, if the deceafed had ftruck at all before the mortal blow given, this takes it out of the ftatute, though in the preceding quarrel the
' Fofter. 258. ' Foft. 299, 300. k i 1 evil Rivm. 140.
VOL. 'IV. A a ftubber
