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do not give up the hope that some day, thanks to the progress of civilisation, humanity will succeed in substituting an organised international justice for the wars which now-a-days take place between sovereign States. But the body of the Institut, as a whole, well knows that that hope has no chance of being realised in our time, and limits its action in this matter to two principal objects the attainment of which is possible :—
“ r. To open and facilitate the settlement of trifling disputes between nations by judicial methods, war being unquestionably a method out of all proportion in such cases.
“ 2. To aid in elucidating and strengthening legal order even in time of war.
“I acknowledge unreservedly that the customs of warfare have improved since the establishment of standing armies, a circumstance which has rendered possible a stricter discipline, and has necessitated a greater care for the provisionment of troops. I also acknowledge unreservedly that the chief credit for this improvement is due to military commanders. Brutal and barbarous pillage was prohibited by generals before jurists were convinced of its illegality. If in our own day a law recognised by the civilised world forbids, in a general way, the soldier to make booty in warfare on land, we have here a great advance in civilisation, and the jurists have had their share in bringing it about. Since compulsory service has turned standing armies into national armies, war also has become national. Laws of war are consequently more than ever important and necessary, since, in the differences of culture and opinion which prevail between individuals and classes, law is almost the only moral power the force of which is acknowledged by all, and which binds all together under common rules. This pleasing and cheering circumstance is one which constantly meets us in the Institfit de Droit International. We see a general legal persuasion ever in process of more and more distinct formation uniting all civilised peoples. Men of nations readily disunited and opposed—Germans and French, English and Russians, Spaniards and Dutchmen, Italians and Austrians—are, as a rule, all of one mind as to the principles of International Law. This is what makes it possible to proclaim an international law of war, approved by the legal conscience of all civilised peoples ; and when a principle is thus generally accepted it exerts an authority over minds and manners which curbs sensual appetites and triumphs over barbarism. \Ve are well aware of the imperfect means of causing its decrees to be respected and carried out which are at the disposal of the law of nations. We know also that war, which moves nations so deeply, rouses to exceptional activity the good qualities as well as the evil instincts of human nature. It is for this very reason that the jurist is impelled to present the legal principles, of the need for which he is convinced, in a clear and precise form, to the feeling of justice of the masses, and to the legal conscience of those who guide them. He is persuaded that his declaration will find a hearing in the conscience of those whom it principally concerns and a powerful echo in the public opinion of all countries.
“ The duty of seeing that International Law is obeyed and of punishing violations of it belongs, in the first instance, to States each within the limits of its own supremacy. The administration of the law of war ought, therefore, to be intrusted primarily to the State which wields the public power in the place where an offence is committed. No State will lightly, and without unpleasantness and danger, expose itself to a just charge of having neglected its international duties; it will not do so even when it knows that it runs no risk of war on the part of neutral States. Every State, even the most powerful, will gain sensibly in honour with God and man if it is found to be faithful and sincere in respect and obedience to the law of nations. Should we be deceiving ourselves if we admitted that a belief in the law of nations, as in a sacred and necessary authority, ought to facilitate the enforcement of discipline in the Army and help to prevent many faults and many harmful excesses? I, for my part, am convinced that the error, which has been handed down to us from antiquity, according to which all law is suspended during war and everything is allowable against the enemy nation-—that this abominable error can but increase the
unavoidable sufferings and evils of war without necessity, and without utility from the point of view of that energetic way of making war which I also think is the right way.
“ With reference to several rules being stated with the qualifications ‘if possible,’ ‘according to circumstances,’ we look on this as a safety-valve, intended to preserve the inflexible rule of law from giving way when men's minds are overheated in a struggle against all sorts of dangers, and so to insure the application of the rules in many other instances. Sad experience teaches us that in every war there are numerous violations of law which must unavoidably remain unpunished, but this will not cause the jurist to abandon the authoritative principle which has been violated. Quite the reverse. If, for instance, a flag of truce has been fired upon, in contravention of the law of nations, the jurist will uphold and proclaim more strongly than ever the rule that a flag of truce is inviolable.
“ I trust that your Excellency will receive indulgently this sincere statement of my views, and will regard it as an expression of my gratitude, as well as of my high personal esteem and of
my respectful consideration. “ DR. BI.uNTscuLI.”
IV.—IS TOMPSON v. DASHWOOD OVERRULED?
THE fragmentary manner in which English Law has been built up renders it a matter of extreme uncertainty in many cases to determine the effect upon the juristic character of an act of the actor’s state of mind. L The consequences of negligence in connection with misrepresentation have formed the subject of controversies, not to be terminated by even a decision of the House of Lords. The relation of negligence to defamation demands an equally searching investigation, in the course of which it will be necessary to consider, amongst others, three cases, which it is the object of this paper to compare with one another.
Tompson v. Dashwood (11 Q.B.D., p. 43) decided in 1883, was a case in which the defendant wrote a letter which was primá facie defamatory, intending to send it to a person who had a common interest with the defendant in the plaintiff's character and conduct. In that case, it would have been a privileged communication; but, by mistake, the defendant placed the letter in a wrong envelope, and it reached a third party. It was held by a divisional court that the judge at the trial was right in directing the jury to find for the defendant, if they thought that the letter was not written maliciously or with an indirect motive. This decision may be placed on two grounds: 1stPassing by the question of privilege altogether, there was no wilful publication to the person who received the letter. A wilful publication of defamatory matter implies malice, but it does not follow that a negligent or inadvertent publication does so-and no express malice was here shown to exist. This view seems to predominate in the judgment of Mathew, J. 2nd-(and this is the ground which is relied on in the leading opinion)—privilege extends to protect bond fide dealings with defamatory matter prepared for use on a privileged occasion. A previous case, Shepheard v. Whitaker," appears at first sight to be inconsistent with the former of these grounds; for nothing more than negligence was there alleged. The defendant, who was the publisher of a trade circular, represented the plaintiff as having become bankrupt, instead of having (as was the case) dissolved a partnership. This was done through the mere negligence of the defendant's servant : yet the action was successful. But a fundamental distinction lies in the fact that the defendant in Shepheard v. Whitaker made the very statement he intended, and to the very persons. The mistake lay in
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 H ebditch 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 aflirms 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 bond fide but negligent or unreasonable use of a privileged occasion, may be a question, and whether Hebditch v. Macllwaine 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