Page:Harvard Law Review Volume 8.djvu/341

325 CONSENT IN THE CRIMINAL LAW. 325 clear: the public has an interest in the personal safety of its citi- zens, and is injured where the safety of any individual is threat- ened, whether by himself or another. The public is not injured merely because A's property goes to B, or A destroys his own property; but it is concerned if A's head or right hand is cut off. Consent of the injured party is therefore not always a defence in a prosecution for a personal injury. A personal injury inflicted by consent may harm the public if it tends to cause a breach of the peace, or severe bodily harm to the injured party. A prize- fight, therefore, or any public fight, is criminal, in spite of the consent of the parties to it to permit injury, because it tends to a breach of the peace.^ A game which involves a physical struggle may be a commendable and manly sport, or it may be an illegal contest in which all the participants are or may become criminals ; this depends upon whether it is a game which endangers life. Thus, in a prosecution for a death which was caused accidentally in playing the game of foot-ball, it was left to the jury to say whether the game was dangerous; for if so, consent on the part of the players to submit to what the game had in store for them would not protect a player from prosecution. " No rules or prac- tice of any game whatever can make that lawful which is unlawful by the law of the land, and the law of the land says you shall not do that which is likely to cause the death of another." ^ And where death happened accidentally while two parties were fencing with sharp foils, protected with buttons at the tips, the killer was held guilty of manslaughter.^ So where the hand of a beggar was cut off at his request, both parties to the transaction were held to be criminal.* Is the public interested in preventing less grave physical in- juries, even when inflicted by consent, if the consent is obtained by fraud? It would seem not, as a general principle. A by fraud induces B to submit to a box on the ear, or to touch a hot poker and thereby get burned ; the real wrong is a fraudulent one, of a sort which the public is not concerned to prevent. The party should be confined to his civil action. But where the injury is against a woman's chastity, other considerations may well pre- vail. It is not the business of the public, to be sure, to keep 1 Com. V. Collberg, 1 19 Mass. 350 ; Cas. Crim. Law, 148. 2 Bramwell, L. J., in Reg. v. Bradshaw, 14 Cox, C. C. 83; Cas. Crim. Law, 146. 8 Chichester's Case, Aleyn, 12.
 * Wright's Case, Co. Lit, 127 a; Cas. Crim. Law, 145.