require none. The existence of surgery as a profession assumes their truth." The English Draft Code of 1879 makes no reference to consent. By s. 67. "Everyone is protected from criminal responsibility for performing with reasonable care and skill any surgical operation upon any person for his benefit; provided that performing the operation was reasonable, having regard to the patient's state at the time, and to all the circumstances of the case." Of course actual dissent would be one of the circumstances of the case. There are some extreme operations, such as those resorted to in certain cases of cancer, which entail such terrible suffering, with such a small chance of success, that many men of ordinary strength of character would prefer to die quietly rather than submit to them. No surgeon would, or ought to, venture to perform tracheotomy or excision of the tongue upon an adult who, upon full consideration of the facts, refused to encounter the risk. On the other hand, no medical man would, or ought to, hesitate to extract a tooth, or to lance a boil of a child of thirteen, however much it might struggle and howl, and I cannot imagine that he could be prosecuted for inflicting hurt without due consent. Possibly in such a case, if it were conceivable, a very scrupulous judge might require the support of s. 95. In most instances the consent of a patient is never asked to an operation. He is told that it is considered necessary, and he submits to it. In such a case consent would be implied from submission. The mere fact of an adult placing himself under treatment in a surgical case would, I have no doubt, carry with it an implied readiness to submit to everything that was necessary for a cure. If his state of health rendered it advisable that the prospect of an operation should be kept from him, and if he were placed under chloroform, and operated on, without knowing what was about to take place, and if such a proceeding was a proper one for his own benefit, a judge or jury might reasonably infer his consent. In a case where an ignorant practitioner performed an operation, so imminently dangerous that skilful surgeons hardly ever attempt it, viz., cutting out internal piles, and the patient bled to death, it was held that he could not claim the benefit of s. 88, as a patient cannot be held to accept a risk of which he is not aware, and which even the operator does not appear to have suspected.1

1 Sukaroo Kobiraj v. Reg., 14 Cal. 566.

T210. Compulsion is of two sorts: it either arises from the act of an authority which, rightly or wrongly, has for the time being superseded the Government of the country, or from the acts of private persons, who, without any show of legality, proceed in open defiance of law. Section 94

appears to refer exclusively to the latter class of cases. There are obvious reasons why a Code, which assumes the continuance of law and tribunals, should take no notice of a state of things in which both have ceased to exist. It may be advisable, however, to offer a few remarks upon that branch of the subject.

T211. The effect of foreign conquest is to annul, or suspend, the ordinary sovereignty of the conquered country; and, while the occupation lasts, the laws of the subject State can no longer be rightfully enforced, or be obligatory upon the inhabitants who remain and submit to the conquerors. No laws other than those of the conquerors can, in the nature of things, be obligatory upon them, for where there is no protection or sovereignty there can be no claim to obedience.1 In cases of civil war, there is greater difficulty; for the first stage of a civil war is always, and necessarily, termed rebellion, and those who take part in, or aid it, rebels and traitors. But it is quite clear that, with respect to civil war also, obedience involves sovereignty, and sovereignty is tested by protection. Sir Robert Phillimore says:-

"The case supposed is always one of the greatest nicety and difficulty. It would rather seem, as a matter of speculation, that when an old Government is so far overthrown that another Government entirely claims, and at least partially exercises, the jurisdiction which formerly belonged to it, the individual is left to attach himself to, and to become, by adoption at least, the subject of either Government. The analogy under which it is most just to range such cases has been thought to be that which has just been discussed, viz., the rule which applies to cases of foreign conquest, where those only are bound to obedience and allegiance who remain under the protection of the conqueror."2

So the stat. 11 Hen. VII., c. 1, which was passed after the Wars of the Roses, recited "that the subjects of

1 Per Mr. Justice Story, cited 3 Phill. Int. L. 737-739.

23 Phill. Int. L. 739; 1 Hale, P.C. 49.

England are bound by the duty of their allegiance to serve their prince and sovereign lord for the time being in defence of him and his realm against every rebellion, power, and might raised against him; " and enacted that no person attending upon the King for the time being in his wars, should be punishable for such service. The general principle was laid down in s. 70 of the Draft Code of 1879: "Everyone is protected from criminal responsibility for any act done in obedience to the laws for the time being made and enforced by those in possession de facto of the sovereign power, in and over the place where the act

is done."

¶212. There is very little upon this point to be found in the English decisions. The rebellion of 1688 was successful and permanent, while those of 1715, 1745, and 1798 were so immediately unsuccessful that they gave birth to no apparently legal state of things. The rebellion against Charles I. is the only instance in English history, apart from disputed succession to the Crown, in which a Government, which had been completely overthrown and replaced by a different constitution, has itself been afterwards restored. Several cases are accordingly to be found in that series of trials which took place after the Restoration of Charles II. In Axlett's case,' an officer who commanded the guards at the trial and execution of Charles I., pleaded that all he did was, as a soldier, by command of his superior officer, whom he must obey or die. This was held to be no excuse, as his superior officer was a traitor, and where the command is traitorous, obedience to it is also treason. This decision, it will be observed, is in accordance with s. 94 of the Code. In Sir Henry Vane's case the charge was treason against Charles II., and the overt acts were that he was one of the State Council, and that he took command of the forces by sea and land, and appointed officers. He pleaded that the King was then out of the kingdom, and out of possession; that Parliament was the only power regnant, and that what he did was by its authority. In fact, he appears to have relied on the principle of 11 Hen. VII., c. 1. The court overruled his defence, holding that Parliament was dissolved by the death of the King, which was immaterial if it continued to be the sole depositary of power, and 2 Kelyng, 15.

1 Kelyng, 13.

2

that from the death of Charles I. his son was de facto, as well as de jure, King of England, which was certainly untrue. Sir Michael Foster obviously considered this ruling to be unsound.1 Various cases arising out of the rebellion of 1745 will be found in Foster. The most important as bearing upon this subject is McGrowther's case, where a lieutenant in the rebel army pleaded that he was a tenant of the Duke of Perth; that on being summoned by the Duke to take up arms he refused, and was then told that he should be forced and bound with cords; and that the Duke threatened to burn the houses and drive off the cattle of all who refused to follow him. It was laid down by Lee, C.J., that the only force that could excuse was a force upon the person and present fear of death, and this force and fear must continue all the time the party remains with the rebels."

Where an authority founded on rebellion has settled down into an apparently legal form of Government. I should suppose that everyone would be justified in obeying and acting under its orders, in the ordinary course of civil administration, even though such orders were illegal in their origin and procedure. So it was held in the United States, that a person who had received, and was accountable for, public money, was discharged by showing that it had been seized and appropriated by the rebel authorities, without any fault or negligence on his part. But such obedience would be no defence if the acts committed were in direct and voluntary furtherance of the rebellion itself, or were crimes which could not be justified under the orders of any authority (ante, ¶¶ 90, 103).

213. As regards compulsion exercised in time of peace by mere private persons, the law is more severe, as in most cases there is a remedy at hand. The mere menace of future death will not be sufficient, however likely it may be to be executed.5 The threat must be of instant death, made under circumstances which render it reasonably likely that it may be executed on the spot. Even such a threat will not excuse a person for committing murder, or an act of treason punishable with death. If the alternative is offered to him of dying as an

1 Foster, Crim. L. 204.

1 Hale, 50; 1 East, P.C. 70.

5 1 Hale, P.C. 51.

2 Foster, Crim. L. 13.

41 Bishop, Crim. L., s. 351.

innocent man or a criminal, he is bound to accept the former; and this was also the law of England.1 Nor will even a threat of immediate death be an excuse if he has voluntarily, or under any weaker form of compulsion, exposed himself to the threat; as, for instance, if he has joined a secret society for criminal purposes, which enforces obedience to its orders by death (Explanation 1). A fortiori, it is no defence to a charge of giving false evidence that the witness had been coerced into doing it by the police inspector; 2 or to a charge of offering bribes to public servants, that the servants were so corrupt that it was necessary to bribe them in order to avoid molestation and pecuniary injury.3

214. The Right of Private Defence (I.P.C., ss. 96106). The whole law of self-defence rests on these propositions: (1) that society undertakes, and, in the great majority of cases, is able, to protect private persons against unlawful attacks upon their person or property; (2) that, where its aid can be obtained, it must be resorted to; (3) that, where its aid cannot be obtained, the individual may do everything that is necessary to protect himself; but (4) that the violence used must be in proportion to the injury to be averted, and must not be employed for the gratification of vindictive or malicious feeling. It is evident that proposition (1) is the basis of the entire law. No one would dream of applying the refinements of the Penal Code to an unsettled country, where everyone carries his life in his hand; and proposition (2) rests upon and assumes proposition (1).

¶ 215. Section 99 lays down two classes of cases, in which self-defence is absolutely forbidden. First, where there is time to have recourse to the protection of public authorities, and, secondly, with certain limitations, where the act is being done by, or under the direction of, a public servant.

The first case rests upon the assumption that selfdefence is unnecessary. "If A fears, upon just grounds, that B intends to kill him, and is assured that he provides weapons and lies in wait so to do, yet without an actual assault by B upon A or upon his house, to commit that fact, A may not kill B by way of prevention. For the

1 1 Hale, P.C. 51.

2 Reg. v. Sonoo, 1 Suth. Cr. 48; Reg. v. Latif Khan, 20 Bom. 394. 3 Reg. v. Maganlall, 14 Bom. 115.