felony, which cannot otherwise be executed, although the person named in the warrant offers no violence to any person; provided, in each of the said cases, that the object for which death or harm is inflicted cannot be otherwise accomplished.

ARTICLE 200.

1 PRIVATE DEFENCE.

The intentional infliction of death or bodily harm is not a crime when it is inflicted by any person in order to defend himself or any other person from unlawful violence, provided that the person inflicting it observes the following rules as to avoiding its infliction, and inflicts no greater injury in any case than he in good faith, and on reasonable grounds, believes to be necessary when he inflicts it:

(a.) 2 If a person is assaulted in such a manner as to put him in immediate and obvious danger of instant death or grievous bodily harm, he may defend himself on the spot, and may kill or wound the person by whom he is assaulted. (b.) 3 If a person is unlawfully assaulted,

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(i.) In his own house;

(ii.) * In the execution of a duty imposed upon him by

law;

(iii.) By way of resistance to the exercise of force which he has by law a right to employ against the person

of another;

he may defend himself on the spot, and may use a degree of force for that purpose proportioned to the violence of the assault, and sufficient (in case iii.) to enable him not only to repel the attack made upon him, but to effect his original

1 See Draft Code, ss. 55-65.

2 Coke, 3rd Inst. 55; 1 Hale, P. C. 482; 1 Hawk. P. C. 82; Foster, 273-5; 1 Russ. Cr. 849. This case is so nearly co-extensive with the first case mentioned in the last Article that East does not notice them separately. Cases, however, may be imagined in which a sudden and violent assault would be no crime, and yet might be resisted by killing the assailant: see Illustration (1).

3 Staundforde, 14a; Coke, 3rd Inst. 56; 1 Hale, P. C. 476, &c. ; 1 Hawk. P. C. 87; Foster, 275-6; 1 East, P. C. 279-80.

In addition to the authorities in the last note, see 1 East, P. C. 287, 307; 1 Hale, P. C. 486.

purpose: but a person using force in the execution of a duty imposed upon him by law, or in order to effect a purpose which he may by law effect in that manner, and not being assaulted, is not entitled to strike or hurt the person against whom he employs such force, merely because he is unable otherwise to execute such duty or fulfil such purpose, except in the cases provided for in Article 199.

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(c.) If a person is unlawfully assaulted by another without any fault of his own, and otherwise than in the cases provided for in clauses (a.) and (b.), but with a deadly weapon, it is his duty to abstain from the intentional infliction of death or grievous bodily harm on the person assaulting, until he (the person assaulted) has retreated as far as he can with safety to himself.

But any person unlawfully assaulted may defend himself on the spot by any force short of the intentional infliction of death or grievous bodily harm; and if the assault upon him is notwithstanding continued, he is in the position of a person assaulted in the employment of lawful force against the person of another.

1 See the authorities quoted for clauses (a.), (b.), and (c.), and especially 1 Hale, P. C. 481. The qualification at the end of this rule is founded on the doctrine that any one may lawfully prevent or suppress by force a breach of the peace or affray (1 Hawk. P. C. 489; R. v. Osmer, 5 East, 308), from which it would seem to follow that a man who is himself assaulted may arrest his assailant, and on the doctrine that son assault demesne is a good defence to an indictment for assault (1 Hawk. P. C. 110). If this were not the law it would follow that any ruffian who chose to assault a quiet person in the street might impose upon him the legal duty of running away, even if he were the stronger man of the two. The passage of Hale appears to me to be applicable only to cases where deadly weapons are produced by way of bravado or intimidation, a case which no doubt often occurred when people habitually carried arms and used them on very slight provocation. In such a case it might reasonably be regarded as the duty of the person assaulted to retreat rather than draw his own sword, but I cannot think that Hale meant to say that a man who in such a case closed with his assailant and took his sword from him would be acting illegally, or that if in doing so the assailant were thrown down and accidentally killed by the fall the person causing his death would be guilty of felony. The minuteness of the law contained in the authorities on which this Article is founded is a curious relic of a time when police was lax and brawls frequent, and when every gentleman wore arms and was supposed to be familiar with the use of them. It might, I think, be simplified in the present day with advantage.

(d.) If two persons quarrel and fight neither is regarded as defending himself against the other until he has in good faith fled from the fight as far as he can; but if either party does in good faith flee from the fight as far as he can, and if, when he is prevented either by a natural obstacle or any other cause of the same nature, from flying farther, the other party to the fight follows and again assaults him, the person who has so fled may defend himself, and may use a degree of violence for that purpose proportioned to the violence employed against him.

Illustrations.

(1.) 2 A, a madman, violently attacks B in such a manner as to cause instant danger to B's life. B may kill A, though A is not committing any crime.

(2.) 3 A, an officer, has a warrant to arrest B on civil process. B flies. A overtakes him, and B assaults A. A may use any degree of violence to B necessary to repel his assault and to arrest him.

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(3.) A, a trespasser, enters B's house and refuses to leave it. B has a right to remove A by force, but not to strike him even if he cannot otherwise get him out of the house. If on the application of such force A assaults B, B may use any degree of force necessary to defend himself and to remove A from the house.

ARTICLE 201.

LAWFUL FORCE.

5 It is not a crime to inflict bodily harm by way of lawful correction, or by any lawful application of force (other than those herein before mentioned) to the person of another; but if the harm inflicted on such an occasion is excessive the act which inflicts it is unlawful, and, even if there is no excess,

1 See the authorities for clause (b.).

This seems to follow directly from the authorities cited. So, if A were under a mistake of fact which B had no time to explain.

1 East, P. C. 307.

1 Hale, P. C. 486.

5 It would be inconsistent with the plan of this work to try to enumerate all the cases in which force may be lawfully applied to the person of another. In 1 Russ. Cr. 856-60, cases will be found as to excessive violence in executing legal process: R. v. Hunter, Str. 499, p. 857. Pressing for the sea service (p. 859). Captains in the merchant service: R. v. Leggetts, 8 C. & P. 191 (p. 860). Correction of children and servants (861-4). See Draft Code, s. 66.

it is the duty of every person applying the force to take reasonable precautions against the infliction of other or greater harm than the occasion requires.

Illustrations.

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(1.) 1A, a schoolmaster, beats B, a scholar, for two hours with a thick stick. Such a beating is unlawful.

(2.) 2 A kicks B, a trespasser, out of his house, in order to force him to leave it. B is killed. The kick is an unlawful act.

(3.) (SUBMITTED.) A, the governor of a gaol, flogs B, a criminal, under the sentence of a court. It is A's duty to cause the surgeon of the gaol to be in attendance to see that no unintended injury is inflicted on B.

ARTICLE 202.

SUPERIOR ORDERS TO EMPLOY FORCE.

In all cases in which force is used against the person of another, both the person who orders such force to be used and the person using that force is responsible for its use, and neither of them is justified by the circumstance that he acts in obedience to orders given him by a civil or military superior, but the fact that he did so act, and the fact that the order was apparently lawful, are in all cases relevant to the question whether he believed, in good faith and on resonable grounds, in the existence of a state of facts which would have justified what he did apart from such orders,3 or which might justify his superior officer in giving such orders.

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Illustrations.

(1.) A, a marine, is ordered by his superior officer on board a man-ofwar 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.]

1 R. v. Hopley, 1 Russ. Cr. 751; 2 F. & F. 202.

2 Wild's Case, 1 Russ. Cr. (5th ed.) 686; 2 Lewin, 214.

As to this see 1 Hist. Cr. Law, 205.

R. v. Thomas, 1 Russ. Cr. 823; 4 M. & S. 441.

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(2.) 1 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.

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(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 D 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.

ARTICLE 203.

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 204-209, 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.

1 R. v. Trainer, 4 F. &. F. 105; 1 Russ. Cr. (5th ed.) 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 parlicular facts.

2 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 court martial. 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.