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thinking it to be a true and innocuous, and therefore a lawful statement; whereas in fact it was a defamatory one. In Tompson v. Dashwood, on the contrary, the defendant's mistake lay in the actual publication. There was no mistake as to the character of the document, nor as to the position of the respective persons for whom it was intended and to whom it was actually sent. In short, as Messrs. Clerk and Lindsell express the point in their work on Torts, in the one case the defendant, having a lawful publication to make, erroneously thought he was making that publication-in the other, the defendant made the publication he intended, erroneously thinking it to be lawful.

Now this is precisely what the defendants did in Hebditch v. MacIlwaine.* They were ratepayers, who had a right to complain to somebody of alleged irregularities in the election of the plaintiff as a guardian. They complained, in fact, to the Board of Guardians itself; and it was held that there was no privilege for this. That is, they made the communication they intended, erroneously thinking it to be lawful. The Court of Appeal refused to say that the bona fides of the defendants was any ground for holding that the view of the Judge of first instance was wrong. But this, of course, merely affirms the latter part of the above proposition—the publication they intended was made by the defendants, erroneously thinking it to be lawful.

How far it is lawful to make a bona fide but negligent or unreasonable use of a privileged occasion, may be a question, and whether Hebditch v. MacIlwaine is consistent with the current of authority on this point may be a subject well worthy of consideration : but how the case can be said to be inconsistent with, much less to have overruled, Tompson v. Dashwood, which is so obviously distinguishable from it, is surprising. For in Tompson v. Dashwood, the

* (1894) 2 Q.B. 54.

fact that the letter was meant for use on a privileged occasion was really not necessary to the decision.

Certainly, the reasoning in the latter case affords material for argument. It proceeds, in great part, on the ground that privilege covers a multitude of sins, rather than on the equally cogent reason that there was no intentional publication of the letter to the person who received it. Accordingly, it is, so far, obnoxious to the unfavourable comments which were passed upon it in the Court of Appeal in Hebditch v. MacIlwaine, and which open up the larger question of the precise extent of protection confined by the existence of privilege. But the actual decision does not appear to be in any way weakened by the subsequent case, and it is still an authority that defamatory matter must be intentionally published before the malice necessary to found liability can be presumed, and that negligent or inadvertent publication is not sufficient for this purpose.

TH. Baty.

V.—THE DYNAMITE PLOT AND EXTRADITION. m he announcement in the daily papers that, on the

1 5th October last, Kearney and Haines, rejoicing in their newly found liberty, had left Rotterdam unscathed instead of being extradited, followed by tidings, a few days afterwards, of similar good fortune to Tynan at Boulognesur-Mer, leads us to consider whether there must not be something altogether faulty in the administration of International justice that such escapes from trial should defile the judicial annals of the nineteenth century. The answer from the ignorant publicist, or from the red-taped official, will be that there was no power to extradite the accused under the existing Extradition treaties. But is this so? Is a treaty really a necessity to enable a Sovereign State to extradite ? Let us see.

Public jurists are divided in opinion upon the question how far a Sovereign State is obliged to deliver up a person charged with a crime committed in another country, upon the demand of that State. According to Wheaton, some writers such as Grotius, Heineccius, Burlamaqui, Vattel, Rutherforth, Schmelzing, and Kent maintain the doctrine that under the Law of Nations every Sovereign State is obliged to refuse an asylum to an individual, accused of crime affecting the general peace and security of society, if his extradition be demanded by the State within whose jurisdiction the crime has been committed. This is known to International Law as a perfect right. And, according to the same authority, other writers such as Puffendorf, Voet, Martens, Klüber, Leyser, Kluit, Saalfeld, Schmaltz, Mittermeyer, and Heffter, on the other hand, maintain that the extradition of fugitives from justice is a matter of imperfect obligation only, and requires to be confirmed and regulated by special compacts in order to give it the force of law. In support of this theory they point to the number of Extradition treaties which have been entered into between various States.

We are, however, of opinion that the conclusion drawn by the second class of writers is in part false. Granted that the right of Extradition be merely imperfect, the syllogism does not necessarily follow that Sovereign States are unable to give and take from other Sovereign States without the trammel of a treaty. There is no necessity for a treaty where goodwill and amity prevail. In fact a treaty is merely declaratory of the unwritten law, modified or augmented to suit particular circumstances. But writers on questions of law frequently do not stop to consider the truth or falsity of a statement which they enunciate ; they

blindly copy the views of earlier writers, and are in their turn copied by their successors.

Extradition treaties, as we now understand them, are comparatively modern, and may be said to date from the year 1842. Some few treaties were made at earlier dates, but they are very isolated, and appear to have been made rather for the purpose of smoothing away political feeling, and for obtaining the friendly act of Extradition from a State whose amity was doubtful. There is no suggestion whatever, that the Law of Nations or International Law was wanting, nor that a State could not extradite without a treaty if it would ; in fact, as we have said before, treaties of Extradition are merely declaratory of the Law of Nations, with particular modifications to suit particular circumstances.

Our proposition is well supported by the words of Mr. Justice Heath in Mure v. Kaye (4 Taunt. 43), who, sitting in the Common Pleas at the beginning of this century (1811), observed, “It has generally been understood, that wheresoever a crime has been committed, the criminal is punishable according to the lex loci of the country against the law of which the crime was committed; and by the Comity of Nations, the country in which the criminal has been found, has aided the police of the country against which the crime was committed, in bringing the criminal to punishment. In Lord Loughborough's time, the crew of a Dutch ship mastered the vessel, and ran away with her, and brought her into Deal, and it was a question whether we could seize them and send them to Holland, and it was held we might.” This case had for precedent the East India Company v. Campbell, which was tried in 1749 on the Equity side of the Court of Exchequer, the Lord Chancellor (Hardwicke) and the Chief Baron (Parker), taking part in the decision. The judgment of the whole Court was: “The Government may send a prisoner, to answer for a crime wherever committed, that he may not involve his country, and to prevent reprisals.” And in our older Reports it is laid down unhesitatingly, that by the Law of Nations, the Justice of one country, should be helping the Justice of another country. Of this our present actions on foreign judg. ments are a relic. But in the past, the heavy machinery now insisted on in the case of a foreign judgment, was not even suggested. Thus in Jurado v. Gregory (1 Vent. 32), we find it laid down that “where sentence is obtained in a foreign Admiralty (i.e., the Court of Malaga, in Spain) one may libel for execution thereof here (England), because all the Courts of Admiralty in Europe are governed by the Civil Law, and are to be assistant one to another, though the matter were not originally determinable in our Court of Admiralty.” The same sentiments of judicial assistance among the civilised States, are to be found in most of our older text-books; thus in i Rolle's Abridgment (tit. Courts s. Admiralty (12)), it is laid down “if a Friselander sue an Englishman in Friseland, before the Governor there, and recover a certain specified sum, but which the Englishman hath not sufficient to satisfy, and return to England; on which the said Governor orders his Letters Missive to England omnes inagistratus infra regnum Angliæ rogans to cause execution of the said judgment, the Judge of the Admiralty in England can execute the said judgment, by imprisonment of the party, and who shall not be delivered by the Common Law, for it is by the Law of Nations that the Justice of one nation shall be helping the Justice of another nation, one to execute the judgment of the other. And the Law of England takes notice of this law, and the Judge of Admiralty is the proper magistrate for the purpose, for he alone has the execution of the Civil Law in this Realm.” In this case the defendant was taken by the authority of the Judge of Admiralty, he sued out a writ of Habeas Corpus, but without avail, for the Court held that

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