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Tompson v. Dashwood (11 Q.B.D., p. 43) decided in 1883, was a case in which the defendant wrote a letter which was prima 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 : ist, Passing 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 bona 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


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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

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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 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.



HE announcement in the daily papers that, on the

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 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,

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