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Reafon and equity however pronounce, that the kindred of the deceased, who are fufferers by his death, fhould be sharers in the Forfeiture incurred by the delinquent. Nevertheless, neither reafon or justice requires, that we utterly ruin one innocent family to redress another.

The Forfeiture therefore in this, and in all other cafes, might be only of a moiety of the delinquent's property; one-fourth of which moiety fhould be appropriated to the Fisk, and the remainder to the friends and relations of the party flain.

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CHAP. VI.

SECT. I

Of Manslaughter.

2. MAN-SLAUGHTER is defined to be

the killing of another without malice, in a prefent heat, on a fudden quar rel, upon a juft provocation; or in the com miffion of a voluntary and unlawful act, without any deliberate intention of doing mischief,

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If two people meet together, and in ftriving for the wall, one of them kills the other, this is Man-flaughter; and fo it is, if, upon a fudden occafion, they had gone into the fields and fought, and one had killed the other; for all this is one continued act of paffion, on the first sudden occafion.

Nothing

Nothing however can be inferred from hence in vindication of duelling, which is a fighting between two upon a quarrel fo long precedent, that it may be presumed the blood was cooled; and in cafe of duelling, not only the principal, who actually kills the other, but also the feconds, are guilty of Murder, whether they fought or not; and the feconds of the perfon killed, it is faid, are equally guilty by reafon of the encouragement which they gave their principals by joining with them.

By the Scotch Law, both the challenger and challenged are punished with death and confifcation of moveables; and the challen ger is liable to fuck arbitrary punishment as the king thinks fit.

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In the Laws of Canutus, as well as among the Saxons before-mentioned, it appears that the fame diftinction was made between Murder and Manflaughter as prevails now; for we find, that if a man was killed wilfully and premeditately, then Bbb

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the offender was to be delivered to the kindred of the flain; but if, upon his trial, the fact was proved not to be wilful, then he was refigned to the bishop, &c.

SECT. II

Of the Judgment in Manslaughter.

IN

N cafes of Manslaughter, the criminal is to be burnt in the hand.

SE C T. III.

Reflections on Judgment in ManLaughter.

I

T is obfervable, that originally the burn

ing in the hand was not intended as part of the Judgment by way of punishment, but only that the criminal might be known on the fecond offence....

At common law a criminal might have had his clergy ad infinitum; but when the

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ftatute was made, which took away the benefit of the clergy upon the fecond arraignment, the burning in the hand became neceffary to diftinguish the criminal.

SE CT. IV.

Of Forfeiture in Manslaughter.

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ITH regard to the Forfeiture, more may be said in vindication of it, in cafe of Manslaughter, than in most other offences; because, in cafe of Manslaughter, the offending party is in being, confequently he suffers for his own offence.

Yet, even in this inftance, the law per haps might admit of improvement: an improvement too, which we may borrow from the barbarous nations. The old practice of making atonement by way of fine and composition, seems to be particularly applicable to this fpecies of offence.

The killing of another, though without malice, is an injury done to the kindred of

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