ARTICLE 204.

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 205.

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 similiar 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.

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 206.

RIGHT TO CONSENT TO BODILY INJURY SHORT OF MAIM.

3 Every one has a right to consent to the infliction upon

none.

I know of no authority for these propositions, but I apprehend they require The existence of surgery as a profession assumes their truth.

2 See note 1, p. 128. Draft Code, s. 67.

3 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.

himself of bodily harm not amounting to a maim. À 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. It is not a maim to cut off a man's nose. Castration is a maim.

ARTICLE 207.

NO RIGHT TO CONSENT TO INFLICTION OF DEATH.

1 No one has a right to consent to the infliction upon himself of death, or of an injury likely to cause death, in any case (other than those mentioned in Article 204), or to consent to the infliction upon himself of bodily harm amounting to a maim, for any purpose injurious to the public.

Illustrations.

(1.) 2A and B agree to fight a duel together with deadly weapons. If either is killed or wounded his consent is immaterial.

3

(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 208.

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

No one has a right to consent to the infliction of bodily

1 Draft Code, s. 69.

2 R. v. Barronet, Dear. 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 227.

3 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 presunie, be an offence at common law also.

Foster, 260; 1 East, 270; R. v. Billingham, 2 C & P. 234; R. v. Perkins, 4 C. & P. 537; R. v. Coney, L. R. 8 Q. B. D. 534.

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 209.

CONSENT TO BE PUT IN DANGER.

1It 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.

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 210.

ACCIDENTAL INFLICTION OF BODILY INJURY BY LAWFUL ACT

WHAT ACTS ARE LAWFUL.

2 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 211, 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 in 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.

1 There is, so far as I know, no authority on this point, but the principle on which prizefights have been held to be illegal might include such a case. 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 ?

21 Hale, 471, &c.; Foster, 258; 1 East, P. C. 260; 1 Russ. Cr. (5th ed.) 844. I cannot give any precise authority as to acts involving penalties.

The words "unlawful act" include

(i.) Acts punishable as crimes [or involving penalties]; (ii.) Acts constituting actionable wrongs;

(iii.) 2 Acts contrary to public policy or morality, or injurious to the public.

Other acts are not unlawful within the meaning of this Article, though they may involve private immorality.

Illustrations.

(1.) 3 A, a schoolmaster, corrects a scholar in a manner not intended or likely to injure him, using due care. The scholar dies. Such a death is accidental.

(2.) A turns B, a trespasser, out of his house, using no more force than is necessary for that purpose. B resists, but without striking A. They fall in the struggle and B is killed. Such a death is accidental.

4

(3.) * A, a workman, throws snow from a roof, giving proper warning. A Lassenger is nevertheless killed. . Such a death is accidental.

5

(4.) A takes up a gun, not knowing whether it is loaded or not, points it in sport at B and pulls the trigger. B is shot dead. Such a death is not accidental. If A had had reason to believe that the gun was not loaded, the death would have been accidental, although he had not used every possible precaution to ascertain whether the gun was loaded or not. (5.) A seduces B, who dies in her confinement. The seduction though an immoral, is not an unlawful act, within the meaning of this Article.

6

11 Russ. Cr. 812-21, for cases; see especially the summing up of Tindal, C.J., in 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.

2 See authorities for Article 208.

3 1 Hale, 473. The same law of course applies to all cases of lawful correction. It would also, I think, apply to Illustration (2), and to all other cases in which force is lawfully applied by one person to the person of another. It is, of course, impossible in a work like this to attempt an enumeration of those cases.

4 Founded on Foster, 262.

5 Founded on Foster, 263. In one of the cases referred to in Foster, the prisoner was convicted of manslaughter, although he had tried the pistol with the rammer. Foster, with reason, thinks this "an extremely hard case." Dixon v. Bell, 5 M. & S, 198, may be taken as illustrating the line between negligence, for which a man is civilly, and negligence for which he is criminally responsible. A in this case had caused the priming to be taken from a loaded gun, and left it in a place where a little girl playing with it shot a little boy. The boy recovered damages against A, but if he had died I do not think A would have been guilty of felony. The case is just on the line.

No one ever suggested that this would be manslaughter, but it exactly marks the distinction between illegality and immorality.

CHAPTER XXII.

OF CULPABLE NEGLIGENCE AND OF DUTIES TENDING TO THE PRESERVATION OF LIFE.

ARTICLE 211.

DEATH OR BODILY INJURY CAUSED BY OMISSION TO DISCHARGE A LEGAL DUTY.

2

1EVERY one upon whom the law imposes any duty, or who has by contract or by any wrongful act taken upon himself any duty, tending to the preservation of life, and who neglects to perform that duty, and thereby causes the death of any person, commits the same offence as if he had caused the same effect by an act done in the state of mind, as to intent or otherwise, which accompanied the neglect of duty.

Provided, that no one is deemed to have committed a crime only because he has caused the death of or bodily injury to another by negligence which is not culpable. What amount of negligence can be called culpable is a question of degree for the jury, depending on the circumstances of each particular case.

Provided, also, that no one is deemed to have committed

The first part of this Article is illustrated by all the Illustrations of the other Articles in the chapter. The whole subject is treated at great length in Wharton on Homicide, chapter iv. § 72, p. 166. Dr. Wharton classifies negligent homicide under the following heads (generalities apart):

1. Use of dangerous things.

2. Dropping things on roads.

6. The care of children, &c.
7. The care of medical men.

3. Management of railroads and steamers. 8. Dangerous machinery.

4. Riding and driving.

5. The care of dangerous animals.

9. Athletic sports. 10. Conclusion.

I have carefully gone through the whole chapter, and I think the whole of it is only a set of illustrations of the principles stated in this and in the concluding Articles of the preceding chapter. It should be observed that the word "negli. gence" excludes intention. The very slightest omission of caution in order to cause death, would constitute malice aforethought, if death were caused thereby. 2 Draft Code, s. 164.

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