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principle, therefore, we may say that a convict can only be punished according to law, and that for any excess or variation of punishment those having him in charge are penally liable.1

Subject, however, to this qualification, an officer is not penally liable for an injury inflicted by him on another person when in inflicting the injury the officer acted under the direction of the State.* "Is damnum dat, qui, jubet dare; ejus vero nulla culpa est, qui parere necesse sit."

An assailant may divest

himself of

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§ 140. A party may juridically divest himself of the protection of the law by assailing another in such a way that that other is authorized, in self-defence, to forcibly repel the assailant. The plea of self-defence is generally interposed legal pro- in cases of homicide, and it is in connection, therefore, tection. with the special topic of homicide that the law in this relation is considered in the greatest detail. It should be remembered, however, that there are other criminal prosecutions to which the same defence may be applicable. Thus, in false pretences, it is a defence that the prosecutor knew of the falsity of the statement.* On the general question the following observations may be made :

1. Rights may come in collision in such a way that neither party is compelled to make a sacrifice for the benefit of the other."

2. Whenever a lesser right comes into collision with one far greater, then it is the duty of the possessor of the former right to recede. § 141. Volenti non fit injuria is a maxim known both to the Roman and the English law; and in all prosecutions in may by as- which the injury is purely private, and is inflicted on the injury bar alienable as distinguished from the inalienable rights of a prosecu- the party injured, the maxim is recognized as good by all

A party

sent to an

tion. Vo

lenti non

fit injuria.

modern jurisprudence. Of this we will have frequent illustrations in the following pages. Thus, consent by

1 See 1 East P. C. 297; 1 Hale, 481; R. v. Friend, R. & R. 20; R. v. Porter, L. & C. 394; 9 Cox C. C. 449; R. v. Miles, 6 Jur. 243; State v. Roberts, 52 N. H. 492, 1872; State v. Hull, 34 Conn. 132, 1867. See infra, 408.

The principle in the text was affirmed in the United States in 1882 by a military court in the case of Mason, a soldier, who undertook, some weeks after the shooting of President Garfield by Guiteau, to shoot Guiteau ;

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an owner to the taking of goods is a defence to a prosecution for larceny ;1 consent to entrance into a house is a defence to a prosecution for burglary; consent to an assault, not connected with a breach of public order, is a defence to a prosecution for assault;3 consent to an intended rape bars a prosecution for rape; consent to an intended robbery bars a prosecution for robbery. But it is to be remembered that this proposition is by its very terms limited to injuries strictly private, and to those which concern the merely alienable rights of the party injured. And it should be also kept in mind that where an attempt is resisted, an indictment may be maintained for the attempt, though the consummated offence was subsequently agreed to. Another qualification to be observed is,

2 Car. & Kir. 957; R. v. Wollaston, 12 public scandal. L. 46. 8. D. de Cox C. C. 180; 26 Law T. Rep. 403, furt. (47. 2.) % 8. I. de oblig. quae ex 1872; R. v. Martin, 2 Mood. C. C. delict. (4. 1.) Sed et si credat aliquis 123; State v. Beck, 1 Hill, (S. C.) 363. invito domino se rem commodatam In the Roman law we have the oft- contrectare, domino autem volente id cited maxim, Volenti non fit injuria; fiat, dicitur furtum non fieri. L. 1. or as put by Aristotle, ȧdıkɛiraι d' ovveis 5. D. de iniur. (47. 10.). . quia EKO. Ethie Nicom. v. 13. But this nulla iniuria est, quae in volentem was held not to include in- fiat. cap. 27. de reg. iur. in VI. 5. 13.) rights; while the better Scienti et consentienti non fit iniuria. opinion was, that so far as concerns L. 1. § 5. D. quod. vi aut clam. (43. the State, no private individual can, 24.) Quid sit vi factum videamus. by consenting that a crime shall be Vi factum videri Quintus Mucius on him, estop the State scripsit, si quis contra, quam profrom prosecuting. The Code on this hiberetur, fecerit. L. 145. D. de reg. point is clear. L. 38 D. de pact. (2. iur. (50. 17.) Nemo videtur fraudare 14.) Ius publicum privatorum pactis eos, qui sciunt et consentiunt. L. 3.

maxim

alienable

committed

mutari

non potest. L. 45. ? 1. D. de ? 5. D. de hom. lib. exhib. (43. 28.) reg. iur. (50. 17.) Privatorum con- Si quis volentem retineat, non videtur ventio iuri publico non derogat. L. 6. dolo malo retinere. L. 6. ¿ 2. D. de C. de pact. (2.3.) Pacta, quae contra L. Fab. de plagiar. (48. 15.) Lege leges constitutionesque, vel contra bo- Fabia cavetur, ut liber, qui hominem nos mores fiunt, nullam vim habere, ingenuum, vel libertinum invitum indubitati iuris est. L. 13. pr. D. ad celaverit,

L. Aquil. (9. 2.)

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eius poena teneatur. Liber homo suo L. 3. 4. D. ad L. Iul. de vi public.

nomine utilem Aquilliae habet actio- (48. 6.) See Lorimer's Inst. (1874) nem: directam enim non habet, quo- p. 32. As to consent to attempts, see niam dominus membrorum suorum infra, ? 188.

nemo videtur.

But the Roman law cautiously limits the maxim to cases where, as in theft, etc.," against the will" is an essential ingredient of the offence, and in which

there is

no breach of the peace or

1 Infra, & 915.

2 Infra, 22 766-770.

3 Infra, 28 556, 577, 636.
♦ Infra, & 554.

5 Infra, 855.

6 Infra, 188.

But not as to public criminal immorali

ties.

that a consent to the doing a particular thing is a bar only to a prosecution for doing such thing precisely and nothing more.1 § 142. Any injury committed in such a way as to be an offence to the body politic can be prosecuted in defiance of the consent of the party immediately injured. Prize-fighters, for instance, may agree to beat each other, and if this is done in private, and death or mayhem does not ensue, no prosecution lies at each other's instance; but it is otherwise when there is a breach of the peace,3 or when the fighting is so conspicuously brutal as to produce public scandal, or work public demoralization. Consent cannot cure duels, or incest, or seduction, or adultery, or the maiming of another so as to render him unfit for public service, or such operations on women as prevent them from having children, or operations to produce miscarriage,7 or (when this is by statute indictable) profligate dealings with minors. The reason is that parties cannot by consent cancel a public law necessary to the safety and morality of the State. Jus publicum privatorum voluntate mutari nequit.8

§ 143. The distinction between alienable and inalienable rights is asserted in the Declaration of Independence and in the Bills of Rights of most of the United States. Inalienable rights as thus generally defined are life, liberty, and the pursuit of happiness. The distinction, however, is not modern; it lies at the basis of the penal sections of the canon law, and

Nor as to inalienable rights.

kins, 4 Ibid. 537. And see Com. v. Wood, 11 Gray, 85, 1857; Sanders v. State, 60 Ga. 126, 1878. See cases cited infra, ¿? 217, 373, 636.

1 R. v. Bennett, 4 F. & F. 1105, Billingham, 2 C. & P. 234; R. v. Per1858; R. v. Case, 4 Cox C. C. 220; R. v. Flattery, 13 Ibid. 388; Don Moran v. People, 25 Mich. 356, 1872; Com. v. Stratton, 114 Mass. 303, 1873; Richie v. State, 58 Ind. 355, 1877. Infra,

188, 636.

2 See Champer v. State, 14 Ohio St. 437, 1862; State v. Beck, 1 Hill, (S. C.) 363, 1833; R. v. Coney, L. R. 8 Q. B. D. 534; 15 Cox C. C. 46; 46 L. T. (N. S.) 307, where it was held by a majority of the English judges that mere presence at a prize-fight, without aiding or abetting, does not make the parties so present participants. Infra, 636. 3 State v. Burnham, 56 Vt. 445, 1879.

* Foster, 260; 1 East, 270; R. v.

5 See Tucker v. State, 8 Lea, 633, 1881.

61 Inst. 107 a. b; 1 East P. C. 396; Steph. Dig. C. L. art. 229 (5th ed.); People v. Clough, 17 Wend. 351, 1837. 1 Infra, ?? 593-4; Crichton v. People, 6 Parker C. R. 363, 1861; though see Smith v. State, 33 Me. 48, 1851.

8 See Berner's Lehrbuch des Strafrecht's, 132. Infra, ?? 451-2. And see R. v. Bennett, 4 F. & F. 1105; R. v. Sinclair, 13 Cox C. C. 28; and cases cited infra, 2577, 636.

from that law is more or less fully absorbed into the common law of continental Europe.1

will not

taking of

§ 144. Life is the first of these inalienable prerogatives. Thus, a man who kills another with the latter's consent is guilty of homicide. Although some of the jurists of the stoical Consent school here argued in the negative, the affirmative was excuse determined under the Justinian Code; and by the Eng- life. lish common law the criminality of the act is such that the consent of the party slain does not even lower the degree. And this rule exists not only in cases where there is malice, but where no malice exists, as in agreements for concurrent suicides.3 Yet we may readily conceive of cases where the degree of guilt would be greatly reduced. A physician, at the request of a dying man suffering intolerable agonies, may, from humane motives, precipitate death; or a soldier on the battle-field, after urgent appeals, may, with intense agony on his own part, yet from the same humane motives, take the same course as to a dying comrade. Yet even here the maxim Volenti non fit injuria cannot be applied. There is nothing in the consent to bar a verdict of guilty. That verdict, however, would be for the lowest form of voluntary manslaughter, and could properly be followed by executive pardon.

We may, therefore, justly argue that if life be an inalienable prerogative, then taking it by self is a public wrong, and those who are accessaries to this public wrong cannot plead in defence the suicide's consent.*

As will hereafter be more fully illustrated, consent will authorize a surgical operation in cases of danger, though the effect of such operation may be fatal.

1 See infra, 8 451-2.

Lord Macaulay's Report on the Indian Hawkins' Pleas of the Crown, Code, 449. Book 1 C. P. S. 6; R. v. Dyson, Russ. "That which the law makes essen& Ry. C. C. R. 523; Com. v. Parker, tial in proceedings involving the de9 Mete. 263, 1845. So as to adminis- privation of life or liberty cannot be tration of poison. Com. v. Stratton, 114 dispensed with, or affected by the conMass, 303, 1873. See this question dis- sent of the accused, much less by his cussed as to suicide, infra, ?? 451–2.

See infra, 451-2.

mere failure, when on trial and in custody, to object to unauthorized

See infra, 451-2; Com. v. Parker, methods," Harlan, J. Hopt v. People, 9 Metc. 263, 1845; Macaulay's Indian 110 U. S. 579, 1883.

Code, 449.

As to consent in waiving 5 Infra, 362. Steph. Dig. C. L.

constitutional and other privileges of art. 225 (5th ed.). As to how far astrial, see Whart. Cr. Pl. & Pr. ?? 351, sent is to be inferred, see McClellen

518,733.

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v. Adams, 19 Pick. 333, 1837.

161

Nor the deprivation of liberty.

§ 145. Deprivation of liberty, no matter on what pretext, rests on the same principles. No man has a right to take away another's liberty, even though with consent, except by process of law. And the reason is that liberty is an inalienable prerogative of which no man can divest himself, and of which any divestiture is null.' Undoubtedly this in one relation conflicts with the attitude once assumed by English and American courts, when maintaining that the slave trade is not piracy by the law of nations. But the abolition of slavery in the United States, and the civil rights amendments and enactments that followed, relieve the courts in this country from the pressure of the precedents referred to, and restore the old doctrine of inalienability of liberty. It is true that cases of this class are not very likely to arise. But should it appear that incarcerations are effected, even by consent, by ecclesiastical or medical authority, of persons whose liberty is thus wrongfully destroyed, the fact of consent could not, if the doctrine here advanced be correct, be used as a defence, when such party seeks release. And a fortiori would it be no defence to an indictment for kidnapping Africans, that the Africans consented to be kidnapped.2 Agreements, also, by a party absolutely giving up the exercise of his business capacity, are void, though agreements not to do business in particular localities may be sustained.3 § 145 a. Constitutional rights to trial by an independent jury, whose deliberations are to be guarded against outside interference, are to be placed in the same category. These a defendant cannot waive.1

Nor waive constitutional

rights of trial.

§ 146. It need scarcely be added that even in those cases of purely private wrongs to which the maxim Volenti non fit injuria Of this we have a remarkable ceived, adequate to imprisonment at illustration in a Pennsylvania case, in hard labor for life? It is going but 1826, in which it was held that an one step further to make an agreeagreement not to bring a writ of error ment to be hanged. I presume no one in a criminal case, especially one of would be hardy enough to ask the high degree, does not estop the de- court to enforce such an agreement, fendant from bringing such writ. The yet the principle is, in both cases, the question arose after a conviction of same." Smith v. Com., 14 S. & R. 69, burglary, where it was alleged that 1827; and see Whart. Cr. Pl. & Pr. ?? the defendant had agreed in writing 541, 733. not to bring a writ of error, and where a motion to quash the writ was on this ground made. But Tilghman, C. J., in refusing the motion, said: "What consideration can a man have re

2 See State v. Weaver, Busbee, 9, contra; a decision which cannot now be sustained.

3 Whart. on Cont., 22 430 et seq. 4 See Whart. Cr. Pl. & Pr. 733.

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