the deceased, as well as a prejudice to the ftate. Though there may not, philofophically fpeaking, be any immorality in the act, as not being done with a deliberate intention of doing mifchief, yet the good of fociety requires that fuch exceffes of paffion fhould be reftrained, and that men fhould be punished for affuming a right of private revenge. A ri

No punishment feems to be mare properly adapted to offences of this kind, than the lofs of property. But reafon and justice feem to require, that three-fourths of the forfeiture in this cafe fhould be applied to the use of the kindred of the perfon flain, by way of compofition, and the remainder to the public treafury; and forfeitures in former times always were divided.

Having faid thus much of Murder and Manflaughter, which are properly called voluntary bomicides, the involuntary bomicides, fuch as those by chance-medley and neceffity, come next under confideration.

CHAP. сн.

3.

CH

SECT. Í.

Of Chance-medley.

HANCE-MEDLEY, is when a man is doing a lawful act without intent of hurt to another, and the death of some perfon doth by chance enfue.

SECT. II.

Of the Judgment in Chance-medley.

OR this offence, the offender has his pardon of courfe.

FOR

SECT. III:

Of Forfeiture in Chance-medley.

THE

HE rigour and injuftice of the forfeiture in this cafe is very obfervable, as the offence is unattended with the least

degree

degree of blame in the offending party. Where, indeed, there are any circumstances of careleffness, it is proper that the offender fhould be punished.

For inftance, if a workman flings rubbish from off a houfe, and gives warning to all perfons to stand out of the way; yet if he kills a perfon underneath, he ought to fuffer, because there was a degree of negligence in not making himself certain that there was no one within the reach of danger, and it is but just that every man, fhould be punished for the confequences of his negligence.

J

In this cafe therefore, it is reasonable that he fhould incur a forfeiture: three-fourths of which, however, as in the former instances, should be appropriated to the kindred of the deceased, and the remainder to the ftate; for the kindred of the flain are more injured by the lofs of their relation, than the ftate is by the lofs of a fubject.

T

But where chance-medley is attended with no negligence in the party doing the mif

chief;

chief, as where a man riding a horse on the ftreet, and a stander-by whips the horse, by which means he runs over a child, or other perfon, and kills it; in this cafe, as there is no careleffness in the rider, fuch chancemedley should not be punished with forfeiture of goods and chattels.

Some flight atonement, in the nature of a deodand, would be fufficient to shew, that the state interefts itself in the preservation of the fubject.

4.

CHA P. VIII.

SECT. I

Of Homicide by Neceffity.

TH

HIS Neceffity makes Homicide excusable or justifiable.

1. Excufable homicide is committed Se defendendo, where one has no other poffible means of preferving one's own life than by killing the person who reduced him to fuch Neceflity.

It is obfervable, that a man could not, by our antient Laws, draw a weapon even in his awn defence in a church or church-yard, or in view of the king's courts of justice, or in any of the king's palaces.

But fuch a construction of law, which op poses the primitive law of nature, by which men are directed towards felf-preservation, is highly unnatural and absurd.

No place can be fo facred as to deprive a man of his right of self-defence, and oblige -him to yield himself a tame facrifice. Such paffive conduct would, in fact, make him criminal in the highest degree; for, should he neglect to defend himself, he would become a felo de fe.

The law of nature, which dictates felfprefervation, is fo powerful, that it fuperfedes all other laws, and an attempt to reftrain it is abfurd and inefficacious.

2. Juftifiable Homicide is either public, and done in the execution of public justice; or private, in defence of one's perfon, house

.