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ter prove my the reasons g the nature ibject. It is mselves in a By are looked he different? ious gene" jeration the hen, on the itemational slation with rest of the :cedence of convinced the weak for private ispensab" stitut who
do not give up the hope that some day, thanks to the progress
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. We 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 iternational law ivilised peoples, ted it exerts an sensual appetites |l aware of the e respected and of nations. We leeply, rouses I. ell as the tw. reason that: of the need # rm, to the # science of tho' declaration wi m it principal: opinion of il
is obeyed and: stance, to Salò The administ: rusted primari the place win ly, and with0l just cha' " not do $0 6Vēl part of nell: ill gain sensit'; be faithful" tions. S' a belief in" iority, O'" my and he?" s? I, for " handed d" is suspe"
st the ent!) increase"
unavoidable sufferings and evils of war without necessity, and
my respectful consideration.
IV.–IS TOMPSON V. DASH WOOD OVERRULED p
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.
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
'cided in 1883, a letter which : it to a person 2ndant in the case, it would y mistake, the velope, and it |ivisional court :cting the jury hat the letter ct motive,
rounds: IS!her, there WAS ved the letter. mplies maict, ir inadvertent as here shown the judgment which is relied ds to protect pared for is
pears at first ese grounds leged. The rcular, reprè. it, instead." rship. This defendants
act that the 'y statement stake lay"
thinking it to be a true and innocuous, and therefore a