39

dulging his own peculiar vein of vivacity." There does not seem to be much law on the subject. In a note to Townshend on Slander and Libel, it is stated that it is not a defense to an action of slander or libel that the words were not spoken in earnest, but as a jest, and that the defendant did not expect to be believed. The authorities cited in support of this proposition are not very numerous, nor are they all closely in point. In one of them, however, it was laid down by the Supreme Court of Illinois (1845) that: In point of law it is immaterial whether a party who slanders his neighbor designs or expects to be believed or not. He cannot be permitted either carelessly or wantonly to sport with the character of another, and then excuse himself upon the ground, that he was not really in earnest, and did not intend that his auditors should credit his unfounded aspersions. When the speaking or publication of slanderous words is once proved, malice is inferred. If the words are used in an unqualified manner, whether the speaker was in jest or earnest, whether he expected to be believed or disbelieved, the mischief is the same, and no legal distinction can be drawn in favor of the guilty party.

In this case the suit was brought by a husband and his wife for slander. The words complained of had been spoken by the defendant concerning the wife, and were of a very gross character. A verdict for substantial damages was affirmed, the Court laying down the salutary doctrines above stated.

As to possible abuse between the parties themselves of relations. of familiar companionship, some helpful suggestions may be drawn from cases dealing with practical jokes of a physical nature. In Wartman v. Swindell, in the Court of Errors and Appeals of New Jersey (25 Atl. 356), it was ruled: If, in an action of tort, the defendant relies upon the defense that the act he did was by way of joke, it is a question for the jury to decide whether the parties had been perpetrating practical jokes upon each other in such a way that the defendant had a right to believe that the plaintiff would accept his act as a joke. The maxim de minims non curat lex does not apply to the positive and wrongful invasion of another's property. The right to maintain an action for the value of property of which the owner is wrongfully deprived is never denied.

In State v. Monroe, in the Supreme Court of North Carolina,40 it was held that a druggist who sold croton oil, and at the purchaser's request dropped it into a piece of candy, might be convicted of assault and battery where the purchaser caused another person to eat the candy to his injury, and the druggist had reason to believe that the dose was intended as a trick or joke upon the person to whom it was administered, and not for medicinal purposes." Commenting upon the New Jersey case shortly after it was decided, we remarked: The question would seem to be

39 Hatch v. Potter, 2 Gilman 725.

40 28 S. E. R. 547.

peculiarly within the province of a jury to determine, on the whole case, whether a given act ought to have been accepted as a joke or can be taken seriously as a tort. On the one hand, a jury could probably be trusted to do justice in a case in which, under the trumped up protection of a practical joke, a person had committed a grievous assault or destroyed valuable property. On the other hand, a jury would be likely to award only nominal or trifling damages to a person who, having by his own acts provoked playful retaliation, suddenly says, I won't play.

PENAL SANCTIONS OF THE LAWS OF WAR.-Recently delegates from the various Chambers of Commerce in France, under the presidency of M. Engerand, assembled to consider what action should be taken against Germany, at the conclusion of hostilities, for her violation, on all sides, of the laws of war. The assembly viewed the question from the moral rather than the legal standpoint, and, although few persons would dispute the validity of the justice of the views expressed, yet the members of the Chambers of Commerce ignored, or little appreciated, the legal difficulties with which they were confronted. M. Thomas Loubat, the ProcuratorGeneral at Lyons, pointed out some of these difficulties in Le Temps. Now we have the question exhaustively re-examined by M. Andre Weiss, member of the Institute and Professor of International Law in the University of Paris.

There is not a Frenchman, writes M. Weiss, who does not wish with M. Engerand and your honorable correspondent of Lyons, M. Loubat, for the hour of justice and expiation for the crimes without number by which Germany has tarnished her arms, in the course of the war which she treacherously declared upon us.

That some criminal prosecutions can be undertaken in France against the responsible authors of crimes which arouse our indignation. I freely admit. The law of nations could not shield those who have deliberately violated it. The enormity of the crime is no title to impunity. Theft, murder, pillage, burnings committed against the laws of war, find in these laws neither justification nor excuse, and our courts-martial do not hesitate to put into operation against the guilty ones who have fallen into the hands of French troops the rigors of the Code of Military Justice. But is it meet that we should go further and, par contumace, extend this repressive action to the officers and soldiers of the enemy still at liberty? I am not at all convinced that it is so. The cases will be very rare of a public prosecution with a certainty of success among those who have taken part in the collective delirium of the army of invasion, the criminals of all ranks. The chances of error will be considerable, the proofs almost always doubtful; the defense to which every accused has the right will be difficult to organize with sufficient guarantees. The impartiality of the judges, the sincerity of the witnesses, will be criticized and disputed beyond the frontiers. The moral authority of the sentence will not be universally recognized, and the trans-Rhenish newspapers would delight in exalting such convicts as objects for imperial favor, and in railing at an impotent furor which had dealt with these miscreants in court before a decisive victory had been obtained in the field of battle.

National justice, then, it seems, is disarmed, but international justice is not. And international law itself possesses the means of denouncing and branding the attempts by which the German Empire has brought us day by day nearer to barbarism.

The fourth Convention signed at The Hague on the 18th October, 1907,

took care, and no one is ignorant thereof, to assure by a sanction pecupiaire, respect for the provisions in the regulations annexed, “concerning the laws and customs of war," which protect the person and property of non-combatants and place under protection from confiscation and useless destruction the property of public enemies. Art. 3 of this Convention is thus framed: "The belligerent who shall violate the provisions of this regulation shall be liable for indemnity if there be ground. He shall be responsible for all acts committed by individuals composing his armed force." Unless we must consider this article as a chiffon de papier without value, it means that Germany, vanquished or even victorious, must indemnify our country for all the outrages against the law of nations, imputable to her officers and soldiers, which the reports of the French official commission have stigmatized with such a terrible nomenclature. And that which it is necessary to remark here is that this sanction, thus introduced into the Hague Convention, which emphasizes its obligatory character, is of German origin. The initiative was taken at the second Peace Conference, and General von Gundell, the German military delegate, to make precise the import of this clause, insisted upon the necessity of placing at the charge of the State the infractions committed by the anonymous crowd which fights under its flag, and to discard in this respect the traditional theory of the faute subjective, according to which the responsibility of the State would only be pledged for the act of its soldiers if a want of care and supervision could be imputed to it.

It is unnecessary to observe that the pecuniary responsibility which the Convention of 1907 has so happily consecrated to the principle does not create any relation de droit between the State which is bound by it and the individuals in the interests of which it exists. These are not able to make application for indemnities, but only the State of which they are the ressortissants and the protégés; it is to this State that belongs exclusively the right to claim legitimate reparation against the State responsible for the injuries of its nationals and of which it will be the sole dispenser.

Two ways are open to the injured State to obtain this redress. They may be either by a Convention entered into with the contravening State; the inscription into the treaty of peace which will mark the end of the hostilities of a forfeited sum destined to indemnify those of its nationals who shall have suffered from a violation of the laws and customs of war formulated in the Conventions of The Hague, and independent of the indemnity or war, properly so called, to which the victor has laid claim. Or there might be an arbitration, a decision by the International Court of The Hague.

All my preferences, I must say, are in favor of this latter solution. It alone is able to assure a la morale the satisfactions demanded for each offense during the war, which our enemies caused to ravage our land. It is not sufficient in effect to make Germany vanquished bear the material ransom of her crimes under the form of a pecuniary contribution. It is necessary that the civilized world should take cognizance of the proceedings in this war, to which Germany has had recourse, and that it should consider the horrors of these. This necessary publicity, this avenging publicity, will be the best sanction of the law of nations insulted. France victorious will have the duty of prosecuting in a solemn international debate, before international judges, whose independence no one will impugn, the process of the Kultur germanique, such as has been revealed in our invaded provinces, and to raise against Germany the requisition of the conscience universal. At The Hague all proofs will be admitted, all testimony will be produced, freely. Nothing will stand in the way of the Berlin Government in discussing and disputing them, of raising doubts, or showing extenuating circumstances. It will be able even to attempt

and to establish, if it can, journalistic exaggerations on our side, and its agencies will have no fear of making imputations against our heroic combatants and the martyred populations of the occupied territories.

If Germany refuse such a hearing, this in itself will proclaim the inanity of the accusations which have been hurled over Europe; it will be the most eloquent of avowals. Germany would thus condemn herself, without appeal, if she fled on the great day from the international audience, where her loyal adversaries shall have haled her.

The just sentence which awaits her, and which will proclaim the dishonor of her defeat, will be the first application of the principle which she had caused to be inserted in art. 3 of the Convention of The Hague. Germany's crimes will be smitted with the arms which Germany herself has forged. And this will be justice.41

REGULATING THE TIME OF CLOSING STORES.-The Supreme Court of Utah declares invalid a state statute providing that all mercantile and commercial houses in cities of over 10,000 population shall close on every business day in the year except the six preceding Christmas day, at 6 p. m., but exempting drug stores and houses dealing mainly in provisions of a perishable nature, which are regarded as public necessities. The statute was invalid as an exercise of the police power since the men's furnishing and jewelry business conducted by one of the complainants without help and the retail cigar business of the other complainant did not affect the health or safety of those engaged in it. Second, it was invalid as special legislation:

"It only applies to cities of 10,000 population or over. Business houses or commercial establishments in other cities and towns may keep open at all hours of the day or night, and sell anything not otherwise forbidden by law. The act further exempts drug stores, and commercial houses dealing exclusively in, or whose major portion of stock consists of, foodstuffs, meats, and provisions of a perishable nature. Under the act, such establishments or houses can keep open and sell anything after 6 o'clock. That is, a hardware, jewelry, book, dry goods, clothing, or cigar store, and many other stores, cannot keep open or sell anything ofter 6 o'clock. But a drug store, or a store whose major portion of stock is foodstuffs, can keep open after 6 o'clock, and sell anything not otherwise forbidden by law. Drug stores are not restricted after 6 o'clock to the sale of drugs merely, nor are food stores to food and provisions. They are privileged to sell, and under the admitted facts do keep open and sell, after 6 o'clock, the same things the plaintiffs are forbidden to sell after that hour. Clearly that is special legislation, and the granting of privileges forbidden by the Constitution.

Thirdly, the act offends against constitutional rights to enjoy, acquire and possess property, the most valuable of which is that of alienation, the right to vend and sell..

"There are things the sale of which may be restricted, regulated, or even prohibited by the Legislature, and enterprises which may be restricted, regulated, and controlled. But such legal interference must rest on the

41 139 L. T. 58.

police power of the state to promote or preserve public health, public morals, public safety, public convenience, and general welfare. The act here has no such purpose, and in no sense tends to promote or preserve public health, morals, peace, order, safety, convenience, comfort, or welfare. It is but an arbitrary and an unwarranted interference with a merchant's business. One or a number of merchants may desire to close their stores at 6 o'clock. They may do that. But they, by legislation, cannot compel every other merchant to close at the same hour. They can run their own business, but not their neighbor's. So employees, for motives of their own, may desire all stores to close at a certain hour. But their employers, whose business and property is affected, have a voice in that. They, if they choose, may consent to close. But they cannot, by legislation or otherwise, be coerced to do so. An employee may refuse to work for another after 6 o'clock. That is his right. But he may not, by legislation or otherwise, prevent his employer from conducting his own business in person, or with other employees who are willing to work for him. That is an unwarranted interference with the rights of others. All this is so self-evident and fundamental as not to admit of argument. Most sweeping amendments to both the federal and state Constitutions are essential to sanction such legislation as indicated in either the title or body of the act before us. If there be one thing more than others to be guarded against encroachment it is the federal and state Constitutions. These we all are sworn to protect and defend. To disobey them is to jeopardize fundamental rights and liberties of the people, imperil their welfare and happiness, and to menace the very existence of governments."1

READING THE BIBLE IN THE PUBLIC SCHOOLS.-The often recurring controversy as to the reading of the Bible in the public schools was before the Supreme Court of Louisiana quite recently. Both a Roman Catholic and a Jew complained that their religious rights were discriminated against in the reading of the Bible in the public schools. The court held that this was true so far as the Jew was concerned, but not true so far as the Roman Catholic was concerned, and the reading was prohibited.

The court examined the various Catholic and other versions of the Bible, but conceding that the Catholic version comes within the school board's rule, it was objected by the Catholic plaintiff, that the Catholic child is taught that there should be no "reading of the Bible without authoritative comment from the head of his own church," and daily exercises in such reading "subjects him to a form of worship of which his parents do not approve." To this the court says: "The Catholic child may or may not be prohibited from reading the Bible without such authoritative comment, but such prohibition would not be a doctrine of that church or creed. And in view of the very recent utterances of His Eminence, Cardinal Gibbons, one would not think that such prohibition can. exist. That eminent man of God and high churchmen, in a recent sermon pointed to his own college days, when he says he carried a New Testament at all times and read one chapter every day."

1 Saville v. Corless, 151 P. 51.