We fhall close this chapter by a difcuffion of the crime of Manflaughter.

The statute law has declared the punishment for this crime, and defcribes it to be a killing without malice aforethought: but we must have recourfe to the common law for a compleat definition of it. Manflaughter is the unlawful killing of another, without "malice express or implied, either intentionally upon a fudden ❝quarrel, or unintentionally in the commiffion of fome unlawful "act." If upon a fudden quarrel, two perfons fight, and one kills the other, if one be greatly provoked, as by pulling his nose, or other great indignity, and he kills the aggreffor, it will be man flaughter, because there was no previous malice, and the act was done haftily without deliberation. But if there be fufficient time for paffion to fubfide, and reason to interpofe, and then the perfon provoked kills the other, it will be murder, because it was a deliberate act of revenge. If a man detects another in the act of adultery with his wife, and kills him on the fpot, by the English law it is manslaughter: for no man ought to be the judge and avenger of his own wrongs; but fuch is the nature of this injury, that if any thing will juftify the taking away life, as an inftantaneous punishment by the party injured, it must be this. g And in England on the conviction of a perfon of manflaughter under thefe circumftances, the judges directed the punifliment to be lightly inflicted.

Intentional manslaughter differs from homicide in felf-defence, in this respect; one is a fudden act of revenge, and the other a ne ceffary act of felf-prefervation. Unintentional manflaughter differs from homicide, by mifadventure in this refpect; the first refultsfrom an unlawful, and the laft from a lawful act. If two men fight, and one kills the other, it is manflaughter, because the act of fighting was unlawful. If a man does an act lawful in itself, in an unlawful manner, without due caution, it is manflaughter. Where a workman flings down a ftone or piece of timber, into a freet, and kills a man, it may be either homicide by miladventure, manflaughter, or murder. If in a country village where few pafs, and due warning is given, it is mifadventure. If in a large town, where people are conftantly paffing, it will be manilaughter, tho warning d Statutes, 135. e 4 Black, Com. 191, ƒ Ibid. g St. T. Raym, ağa, b4 Black. Com. 191. i 3 Inft. 57.

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warning be given: but if no warning be given, it will be murder, for fuch conduct evidences a general malice against all mankind. If one riding a horse, another whips him, by which he runs over a child and kills him, it is accidental in the rider, but manflaughter in the perfon ftriking the horse, for the act was a trespass.-Wherever death enfues in confequence of any dangerous and unlaw. ful fport, as fhooting, or casting stones in a town, the flayer is guilty of manslaughter, on account of the illegality of the acts.

The general rule is, that when an unintentional homicide happens in confequence of an unlawful act, it will be murder or manflaughter, according to the nature of the act which occafioned it, If it be in the commiffion, or in the attempt of committing a capital crime, it will be murder: as if a man fhould kill a woman in attempting to commit a rape, it would be murder: if the crime be not capital, or the act a trefpafs, it will be manslaughter.— There can be no doubt of the juftice and propriety of making the unintentional killing of a perfon, murder, where the real intent was to commit a crime of as high a nature. But the law is too fevere, to say that it shall be manslaughter in all cafes, where the killing refults from an attempt to commit a crime not capital, or to commit a trefpafs, and then to punish the crime under all the various circumftances with the fame feverity. It seems repugnant to reason and justice, to punish the offender under circumstances of the flightest criminality, with the fame feverity as offenders whose erime is attended with the deepest guilt. If a man hunting on another's ground, which is clearly a trepafs, fhould happen in fhooting game, to kill a perfon, this would be manslaughter according to the common law. Under these circumstances, it is hard and unjust to punish the unfortunate offender, with the fame severity as the law punishes a man, who when ftealing a horfe unintentionally kills another. There certainly is a great difference in the criminality of thefe acts, and the punishment ought to be varied and proportioned accordingly. Perhaps this diftinction might be adopted with pro priety, that where a man unintentionally kills another, in committing or attempting to commit fome crime of equal malignity with and deferving as fevere a punishment as manflaughter, that he fhould be deemed guilty of that crime, and there would be no difficulty

A 4. Black. Com 191. Foft. 258. 1 Hawk. P...

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in fpecificating thefe crimes. But that where the unlawful act intended to be done, could not be confidered as deferving fuch fevere punishment, it should either not be accounted manflaughter, or be called manflaughter in an inferior degree, and punishable with lefs feverity. It is evident that where a man in committing a trefpafs, undefignedly kills another, he does not deferve to be punished with that feverity, which is denounced against the crime of manslaughter for he may thus by an accidental and involuntary act, be involved in the punifament for a crime, which he reprobates with all his heart, and would not commit on any confideration with design. The intent of the mind, conftitutes the nature and degree of the crime. In a civil view, a man is responsible for all the confequences of the act, which he does to the party injured, whether he contemplated them, or not; but in a moral view, the crime is not merely to be confidered according to the confequences, which happen to enfue, but according to what the criminal had it in his power actually to contemplate or expect at the time of doing the act, and according to the intent of his mind. If it thould be thought proper, that a man who kills another in attempting to commit fome of the loweft crimes, or a trefpafs, fhould be punished for the purpose of making mankind more cautious and circumfpect in their conduct, then let homicide under these circumstances conftitute a new species of crimes, or an inferior grade of manflaughter, and let the punishment be proportioned to the nature of the offence. Then we fhall follow the excellent rule of feparating crimes in our definitions, that are really different and of not inflicting the fame punishment, upon crimes of a different na

ture.

The ftatute punishes this crime by a forfeiture of all the goods and chattels of the offender, at the time of committing it, by whipping, burning in the hand with the letter M, and by a perpetual difability to be a juror or witnefs. The dreadful punishment annexed to this crime, must have be en dictated by that horror which is univerfally entertained refpecting homicide, without due attention to the circumftances under which it may be committed But at this enlightened period, when reafon and science have difpel

led the gloom of prejudice and fuperftition, it is to be hoped that the legiflature will foon enact more rational and confiftent laws on this fubject.

This is the only crime punishable by a forfeiture of all the goods of the offender. In general, where a perfon is to be deprived of his property for a crime, it is in the nature of a fine, which is affeffed by the court. This was borrowed from the English jurifprudence, where almoft every crime works a forfeiture of the estate of the criminal. Laws most evidently adopted in those barbarous ages, when the rapacity of the rulers delighted to take advantage of the failings of their fubjects, for the purpofe of plundering them of their property.

CHAPTER FOURTH.

OF RAPE, AND OTHER HIGH CRIMES.

RAPE is where a man obtains carnal knowledge of a wo

man, with force and against her confent. To conftitute this crime, there must be an actual penetration, and any attempt, however abufive and violent, will not be a rape, if this be not effected. Such attempt at common law, would be confidered as a highhanded affault, but in this fate, it is punishable by ftatute. Carnal knowledge of a female, under ten years, whether against her confent or not, is confidered to be a rape at common law. This crime may be committed upon a woman let her character be ever fo abandoned in point of chaflity; for the law more charitably than rationally fuppofes, that there was a poffibilty of repentance and reformation. A male under the age of fourteen years, is confidered to be incapable to commit this crime.

At common law, the party ravished is a competent witness to convict a man of a rape; but her credibility muft be judged of, according to the circumflances of her teftimony, and the facts which may be teftified by other witneffes. If the witness be a woan of fair character, immediately make known the offence, and fearched

Statutes, 197. 4 Black. Com. 210. m Ibid. 213.

fearched for the offender: if the party accused fled, and fuch circumftances happened as ufually do, and probably will attend fuch tranfactions, then her teftimony may be credited. But if her character be bad in point of truth as well as chastity, if he did not forthwith make complaint, but concealed the injury, if the place where the charges the fact to have been done, was where she might have been heard, and the made no outcry, if the be unfup. ported by others, and her story be not confirmed by those attendant circumftances, which are the most infallible clue to truth, the onght not to be credited. As the law gives a woman fo much power, to fubject a man to a capital punishment, it ought particularly to be obferved, whether the witness has not had a previous controverfy with the perfon accufed, fo that it is probable that the charge is made from motives of malice and revenge : especially if the witness be a woman of bad fame: for the vindictive spirit of lewd women, has furnished frequent inftances of fuch conduct. If the female on whom the rape is charged to be committed, be under twelve years, if the has fufficient understanding to be a witnefs,fhe is admiffible. When it is confidered that this accufation is eafy to be made, and that it is hard for an innocent man to defend against it, jurors fhould be cautious that their deteftation of the offence should not influence them to convict a perfon upon flight evidence.

All nations have entertained fuch a deteftation of this crime, that they have punished it with great feverity, generally with death. When it is confidered that it is fo dangerous to fociety, fo deftruc tive to the peace of families, fo diftreffing to the unhappy victim of it, and indicative of fuch a depravity of mind, the humane and benevolent heart, the strongest advocate for lenity of punishment, cannot find much fault with a law that fubjects the criminal to the pains of death. Such is the punishment by our law, but as it is probable, that perpetual confinement to hard labour, would more effectually prevent the commiffion of the crime, it would be better to adopt that punishment.

In this state, not many years fince, a man convicted of a rape, and fentenced to fuffer death, petitioned the legislature for a com

mutation