1

Illustrations.

(1.) 1 A, a marine, is ordered by his superior officer on board a man-of-war to prevent boats from approaching the ship, and has ammunition given him for that purpose. Boats persisting after repeated warnings in approaching the ship A fires at one and kills B. This is murder in A, although he fired under the impression that it was his duty to do so, as the act was not necessary for the preservation of the ship [though desirable for the maintenance of discipline].

(2.) 2 A, the driver of an engine, orders B, the stoker (whose duty it is to obey his orders), not to stop the engine. The train runs into another in consequence, and C is killed. B is justified by A's order.

(3.) 3 (SUBMITTED.) A, a civil magistrate, directs B, a military officer, to order his men to fire into a mob. B gives the order. It is obeyed, and C, a common soldier, shoots D dead. The question whether A, B, and C respectively committed any offence depends on the question whether each of them respectively had reasonable grounds to believe and did in fact believe in good faith either that what they did was necessary to suppress a dangerous riot, or in the case of B, that A, or in the case of C, that B, had reasonable grounds to believe and did believe that the order given was necessary to suppress a dangerous riot. A's direction to B, and B's order to C, would not necessarily justify B or C in what they did, but would be facts relevant to the question whether they believed upon reasonable grounds as aforesaid.

1 R. v. Thomas, 1815, 1 Russ. Cr. 732; 4 M. & S. 442.

2 R. v. Trainer, 1864, 4 F. & F. 105; 1 Russ. Cr. 837, 838. The language of Willes, J., in this case seems to be a little too wide, unless it is taken in connection with the particular facts.

3 Whether C would commit a military offence if he refused to obey B's order because he rightly thought it unreasonable, is a question which would have to be decided by a court-martial. I should suppose that cases might be imagined in which even a court-martial would hold that a military inferior might and ought to disobey orders on the ground of their illegality. An officer, e.g., who commanded his men to fire a volley down Fleet Street when there was no appearance of a disturbance, or to shoot a child of four years old running away during a riot, or to desert to the enemy, or to shoot a superior officer, ought to be disobeyed, and I suppose that a soldier who obeyed such an order might be punished by a courtmartial. That such acts as shooting peaceable people wantonly, or a child of four years old intentionally, even in a riot, would be murder as well in the soldier as in the officer cannot be doubted. If so, it seems impossible to suggest any other principle as to the effect of superior orders than the one mentioned in the text. It is indeed essential to the maintenance of the supremacy of the common law over military force.

ARTICLE 224.

CONSENT TO BODILY INJURY.

The consent of a person killed or maimed to the infliction of death or bodily harm, affects the criminality of such infliction to the extent defined in Articles 225-230, both inclusive. In each of these Articles the word "Consent " means a consent freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which he consents.

Consent is said to be given freely when it is not procured by force, fraud, or threats of whatever nature.

ARTICLE 225.

RIGHT TO CONSENT TO BODILY INJURY FOR SURGICAL PURPOSES.

1 Every one has a right to consent to the infliction of any bodily injury in the nature of a surgical operation upon himself or upon any child under his care, and too young to `exercise a reasonable discretion in such a matter, but such consent does not discharge the person performing the operation from the duties hereinafter defined in relation thereto.

ARTICLE 226.

SURGICAL OPERATION ON PERSON INCAPABLE OF ASSENT.

(SUBMITTED)-2 If a person is in such circumstances as to be incapable of giving consent to a surgical operation, or to the infliction of other bodily harm of a similar nature and for similar objects, it is not a crime to perform such operation or to inflict such bodily harm upon him without his consent or in spite of his resistance.

1 I know of no authority for these propositions, but I apprehend they require none. The existence of surgery as a profession assumes their truth.

2 See the last note. Draft Code, s. 67.

Illustrations.

(1.) A is rendered insensible by an accident which renders it necessary to amputate one of his limbs before he recovers his senses. The amputation of his limb without his consent is not an offence.

(2.) If the accident made him mad, the amputation in spite of his resistance would be no offence.

(3.) B is drowning and insensible.

A, in order to save his

life, pulls B out of the water with a hook which injures him. This is no offence.

ARTICLE 227.

RIGHT TO CONSENT TO BODILY INJURY SHORT OF MAIM.

1 Every one has a right to consent to the infliction upon himself of bodily harm not amounting to a maim. A maim is bodily harm whereby a man is deprived of the use of any member of his body or of any sense which he can use in fighting, or by the loss of which he is generally and permanently weakened, but a bodily injury is not a maim merely because it is a disfigurement.

Illustration.

(1.) It is a maim to strike out a front tooth. maim to cut off a man's nose. Castration is a maim.

It is not a

ARTICLE 228.

NO RIGHT TO CONSENT TO INFLICTION OF DEATH.

2 No one has a right to consent to the infliction upon himself of death, or of an injury likely to cause death, in any

1 The positive part of this Article is proved thus:-Injuries short of maims are not criminal at common law unless they are assaults, but an assault is inconsistent with consent. As to the definition of a maim, see 1 Hawk. P. C. 107. He expressly mentions castration.

2 Draft Code, s. 69.

case (other than those mentioned in Article 225), or to consent to the infliction upon himself of bodily harm amounting to a maim, for any purpose injurious to the public.

1

Illustrations.

(1.) A and B agree to fight a duel together with deadly weapons. If either is killed or wounded his consent is immaterial.

(2.) 2 A gets B to cut off A's right hand, in order that A may avoid labour and be enabled to beg. Both A and B commit an offence.

ARTICLE 229.

NO RIGHT TO CONSENT TO INJURY CONSTITUTING A BREACH OF THE PEACE.

3 No one has a right to consent to the infliction of bodily harm upon himself in such a manner as to amount to a breach of the peace, or in a prize fight or other exhibition calculated to collect together disorderly persons.

ARTICLE 230.

CONSENT TO BE PUT IN DANGER.

4 It is uncertain to what extent any person has a right to consent to his being put in danger of death or bodily harm by the act of another.

1 R. v. Barronet, 1852, D. & P. 51. The law has never, I believe, been disputed. It is also immaterial whether the duel is or is not what is called fair. See, too, authorities as to suicide, Article 248.

2 1 Inst. 107 a, b. I think the qualification in the Article, "for any purpose injurious to the public," must be supplied. It seems absurd to say that if A gets a dentist to pull out a front tooth of A's because it is unsightly, though not diseased, A and the dentist both commit a misdemeanor. When it was an essential part of a common soldier's drill to bite cartridges I believe that it was not an uncommon military offence to get the front teeth pulled out, and this would, I presume, be an offence at common law also.

3 Foster, 260; 1 East, 270; R. v. Billingham, 1825, 2 C. & P. 234 ; R. v. Perkins, 1831, 4 C. & P. 537; R. v. Coney, 1882, 8 Q. B. D. 534. 4 There is, so far as I know, no authority on this point, but the princi

Illustration.

(1.) A, with B's consent, wheels B in a barrow along a tight rope at a great height from the ground. C hires A and B to do so, D, E, and F pay money to C to see the performance. B is killed.

Quære, are A, C, D, E, and F, or any and which of them, guilty of manslaughter?

ARTICLE 231.

ACCIDENTAL INFLICTION OF BODILY INJURY BY LAWFUL ACT

WHAT ACTS ARE LAWFUL.

1 It is not a crime to cause death or bodily harm accidentally by an act which is not unlawful, unless such act is accompanied by an omission, amounting to culpable negligence, as defined in Article 232, to perform a legal duty imposed either by law or by contract on the person who does the act.

An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it, and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it.

The words "unlawful act" include

(i.) acts punishable as crimes [or involving penalties];

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(ii) acts constituting actionable wrongs;

3

(iii.) 3 acts contrary to public policy or morality, or injurious to the public.

a case.

ciple on which prizefights have been held to be illegal might include such Such an exhibition might also under circumstances be a public nuisance. To collect a large number of people to see a man put his life in jeopardy is a less coarse and boisterous proceeding than a prizefight, but is it less immoral?

1 1 Hale, 471, &c.; Foster, 258; 1 East, P. C. 260; 1 Russ. Cr. 844. I cannot give any precise authority as to acts involving penalties.

21 Russ. Cr. 812-21, for cases; see especially the summing up of Tindal, C.J., in Fenton's case, 1839, 1 Lew. 179; 1 Russ. Cr. 817. Hale, East, and Foster make a distinction between mala in se and mala prohibita, which I think can no longer be regarded as law.

3 See authorities for Article 229.