PREFACE.

I NOW Submit to the indulgent consideration of the Profession and the public another portion of the labors appertaining to the Dane Professorship of Law in Harvard University. The subject is one of great importance and interest; and from the increasing intercourse between foreign States, as well as between the different States of the American Union, it is daily brought home more and more to the ordinary business and pursuits of human life. The difficulty of treating such a subject in a manner suited to its importance and interest can scarcely be exaggerated. The materials are loose and scattered, and are to be gathered from many sources, not only uninviting, but absolutely repulsive, to the mere Student of the Common Law. There exists no treatise upon it in the English language; and not the slightest effort has been made, except by Mr. Chancellor Kent, to arrange in any general order even the more familiar maxims of the Common Law in regard to it. Until a comparatively recent period, neither the English Lawyers, nor the English Judges seem to have had their attention drawn towards it, as a great branch of international jurisprudence, which they were required to administer. And, as far as their researches appear as yet to have gone, they are less profound and satisfactory, than their admirable expositions of municipal law.

The subject has been discussed with much more fulness, learning, and ability by the foreign jurists of continental Europe. But even among them there exists no systematical Treatise embracing all the general topics. For the most part, they have dis

cussed it only with reference to some few branches of jurisprudence, peculiar to the civil law, or to the customary law (almost infinitely varied) of the neighboring States of Europe, or the different Provinces of the same Empire. And it must be confessed, that their writings are often of so controversial a character, and abound with so many nice distinctions, (not very intelligible to jurists of the school of the Common Law,) and with so many theories of doubtful utility, that it is not always easy to extract from them such principles, as may afford safe guides to the judgment. Rodenburg, Boullenois, Bouhier, and Froland have written upon it with the most clearness, comprehensiveness, and acuteness. But they rather stimulate, than satisfy inquiry; and they are far more elaborate in detecting the errors of others, than in widening and deepening the foundations of the practical doctrines of international jurisprudence. I am not aware, that the works of these eminent jurists have been cited at the English Bar; and I should draw the conclusion, that they are in a great measure, if not altogether, unknown to the studies of Westminster Hall. How it should happen, that, in this age, English Lawyers should be so utterly indifferent to all foreign jurisprudence, it is not easy to conceive. Many occasions are constantly occurring, in which they would derive essential assistance from it, to illustrate the questions, which are brought into contestation in all their courts.

In consulting the foreign jurists, I have felt great embarrassment, as well from my own imperfect knowledge of the jurisprudence, which they profess to discuss, as from the remote analogies, which it sometimes bears to the rights, titles, and remedies recognized in the Common Law. To give their opinions at large upon many topics would fill volumes; to omit all statements whatever of their opinions would be to withhold from the reader many most important lights, to guide his own studies, and instruct his own judgment. I have adopted an intermediate course; and have laid before the reader such portions of the opinions and reasonings of foreign jurists, as seemed to me most useful to enable him to un

derstand their doctrines and principles, and to assist him with the means of making more ample researches, if his leisure or his curiosity should invite him to the pursuit. Humble as this task may appear to many minds, it has been attended with a labor truly discouraging and exhausting. I dare not even now indulge the belief, that my success has been at all proportionate to my wishes or my efforts. I feel, however, cheered by the reflection (is it a vain illusion?) that other minds, of more ability, leisure, and learning, may be excited to explore the paths, which I have ventured only to point out. I beg, in conclusion, to address to the candor of the Profession my own apology in the language of Strykius: "Crescit disputatio nostra sub manibus; unum enim si absolveris jus, plura se offerunt consideranda. At nos temporis, quod nimis breve nobis fit, rationem habentes, accuratius illa inquirere haud possumus. Hinc sufficerit, in presens sparsisse quædam saltem adhuc jura, quidque de iis statuamus, vel obiter dixisse."!