Foreign and Domestic Law

PREFACE TO THE FIRST EDITION.

THE fact that twenty years have elapsed since the publication of Mr. Westlake's work on Private International Law, and that no other English writer has since treated exclusively of the subject, may perhaps justify this attempt to supplement the deficiencies which lapse of time has created in that treatise. It is true that a portion of Sir R. Phillimore's voluminous Commentaries on International Law is devoted to this branch of jurisprudence, and that the successive editors of Story's "Conflict of Laws" have incorporated into the text references to the more prominent of the modern English decisions; but neither of these works appears entirely adequate to the requirements of the practical English lawyer; and the author believes that a less ambitious summary of the English law on the subject may supply a sensible want.

The present work does not purport to be a treatise on Private International Law in the ordinary sense of the phrase. Private International Law is to be collected from the judicial decisions of many nations and from the writings of many jurists. It would be a superfluous, if not a presumptuous task, to undertake the reproduction and analysis of the materials which Story and Westlake, as well as others, have already handled. So far as those writers have expounded the theory and science of this branch of jurisprudence, their works must remain the classics of the subject, with which no subsequent writer is likely to compete successfully. The author has accordingly abstained from rearranging those citations from the jurists which formed the foundation of the science, but which have since become trite under the hands of its professors. The English decisions, on the other hand, which have been built upon that foundation still remain a more or less chaotic mass. Since the publication of Westlake's treatise the importance of the subject to the English lawyer has been extraordinarily developed, and it is not too much to say that on almost every branch of it the law has undergone alteration.

The index of cases prefixed to the present treatise, as compared with that of the earlier work, will give some idea of the need which exists for a reconsideration of the subject.

The object of the author, then, has been to attempt to reduce into order the mass of materials which has accumulated; and to construct the framework of private international law, not from the dicta of jurists, but from the judicial decisions in English Courts which have superseded them. Not only every branch, but almost every ramification of the subject, has now come, directly or indirectly, under the consideration of English tribunals; and it is obvious that in their declarations of opinion the English lawyer, at least, will find his most trustworthy guide. Where their voices are still uncertain, the less authoritative judgments of the text-writers have generally been cited to supplement them.

The summaries which have been subjoined to the different headings are not in any way intended, it is almost unnecessary to say, as an attempt at codification. No branch of jurisprudence is perhaps less adapted to such treatment. They are meant merely to guide the student, to assist reference, and to present the conclusions at which the author has arrived in as clear and definite a form as possible. Without some such assistance it would often be difficult to ascertain the whole effect, or what presents itself to the author's judgment as such, of the cases collected and considered under each heading. To express satisfactorily the amount of certainty which in each particular case is justifiable, while avoiding any assumption of dogmatism or formal codification, unsupported by authority, has throughout been the chief consideration. In order to present a general synopsis of the whole subject, the summaries have been reprinted at the end of the book in a continuous form.