19- P u D L i c BOOK IV. of juftifiable homicide, as in cafe of a forcible rape, but it is manslaughter d . It is however the lowefl degree of it : and therefore in fuch a cafe the court directed the burning in the hand to be gently inflicted, becaufe there could not be a greater provocation e . Manflaughter therefore on a fudden provocation differs from excufable homicide^ defendendo in this: that in one cafe there is an apparent necefiity, for felf-prefervation, to kill the aggreflbr ; in the other no necefTity at all, being only a fud- den act of revenge.
THE fecond branch, or involuntary manflaughter, differs alfo from homicide excufable by mifadvcnture, in this ; that mif- adventure always happens in confequence of a lawful act, but this fpecies of manflaughter in confequence of an unlawful one. As if two perfons play at fvrord and buckler, unlefs by the king's command, and one of them kills the other : this is manflaughter, becaufe the original act was unlawful ; but it is not murder, for the one had no intent to do the other any perfonal mifchief f . So where a perfon does an act, lawful in itfelf, but in an unlaw- ful manner, and without due caution and circumfpection : as when a workman flings down a ftone or piece of timber into the flreet and kills a man ; this may be either mifadventure, man- flaughter, or murder, according to the circumftances under which the original act was done : if it were in a country village, where few palTengers are, and he calls out to all people to have a care, it is mifadventure only : but if it were in London, or other po- pulous town, where people are continually pafllng, it is man- ilaughter, though he gives loud warning 6 ; and murder, if he knows of their pafllng and gives no warning at all, for then it is malice againft all mankind h . And, in general, when an invo- luntary killing happens in confequence of an unlawful act, it will be either murder or manflaughter according to the nature of the act which occafloned it. If it be in profecution of a felonious
- i Hal. P. C. 486. f Kel. 40.
c Sir T. Raym. 212. h 3 Inft. 57. f 3 Inft. 56!
intent,
