Traite de Droit International Prive

Traite de Droit International Prive

Bibliographic Details

Paris: Librairie de la societe du Recueil Sirey. 1914

Book Review

This translation is one of the Bibliotheque Itrangere of private international law produced under the direction of Professor de Lapradelle of the faculty of law of the University of Paris. The famous original treatise was first published 56 years ago by Dr. Westlake in 1858, when its learned author was but thirty years of age, and was the cornerstone of his great reputation. A second edition was published in 1880, a third in 1890, a fourth in 1905 and the last, from which the translation is made, in 1912. The lamented death of the learned author occurred April 14, 1913. Dr. Westlake, one of the ripest and clearest writers in both Public and Private International Law, sought mainly in this work to derive his principles from English precedents, and has stated that when he looked abroad “it has almost always been in Europe and not to America” adding “The jurisprudence of the United States in private international law is rich, but it is too like our own to serve my purpose with students, while the practitioner will find its results embodied in the American treatises.

Introduction to Traite de Droit International Prive

It would have required the leisure hours of years to examine the United States decisions as carefully as I have here examined the English ones, and with less care it would have been absurd to compete with their native exponents.” This I quote from the preface of his second edition. The translation omits all Dr. Westlake's several prefaces, which is somewhat to be regretted, as they were explanatory of his system, his purpose and scrupulously gave credit to those who had assisted him.

Context of Traite de Droit International Prive

However, the very interesting and illuminating “Preface ” contributed to this translation by Professor de Lapradelle covers seven pages and briefly reviews the long life and many distinguished services of Dr. Westlake and expands into a convincing appreciation of the views he has advanced and advocated. Professor de Lapradelle shows that when this work first appeared, Savigny was known in Germany, Foelix in France and Story in the United States, but that the science of private international law was not then honored as today. That the English courts tended to follow Story who, notwithstanding his acquaintance with practice and the breadth of his learning, was an imperfect guide in respect to principles.

Thesis Statement

He shows that the old doctrine of Voet was brought from the Netherlands into Great Britain by Scotch advocates who habitually studied law in Holland, and imposed the doctrines of territoriality mitigated by comity. That the land laws of England were so special that great confusion would have been produced by the recognition of foreign laws. He shows the Wills Act of 1861 had not yet declared valid in England the testament made by a foreigner in conformity with the law of the place of its execution. He finds Westlake's mind too large to agree to this insular conception of private international law based on doctriRe and legal technique from which analysis, observation and reason were banished.

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That he initiated Englishmen in the luminous expositions of Savigny but did not forget that he was a practitioner writing for other practitioners, English like himself. That he was not, like other disciples of Bentham, a philosopher to whom the technicalities of law are foreign, but an English lawyer formed in Lincoln's Inn, learned as a continental professor, but versed in insular law and a member of the English bar.

Analysis of the Text

He shows that after twenty-two years of seeming failure to influence jurisprudence, during which, when his work was quoted in court, a judge had asked “When did he live?” by the end of the nineteenth century no English court could decide a question of conflict of law without first consulting him. He attributes many famous decisions turning on the law of the domicil rather than of the place of the act, to his influence on English courts, citing Udny v. Udny, 1869, Sottomayer v. de Barros, 1877, Cooper v. Cooper, 1888, and Huntly v. Gaskell, 1906.

Other Aspects

He shows that Westlake in his first edition held the principle that capacity to alienate immovables depends on the law of the place of their situation, though he had no precedent. In 1909, in Bank of Africa, Limited, v. Cohen, the courts so decided. He finds Westlake's mind more open to the theories of Continental law than any in England. It is certainly fit that a work of the scope thus indicated should be made available to readers on the Continent of Europe and to the many there who are conversant with French but not with English. It is not the first time Westlake has been thus honored. Nineteen years ago his studies in the principles of international law were translated into French by the eminent scholar, E. Nys, and published at Brussels. Westlake was a leading spirit in founding in 1869 La Revue de Droit International and, in 1873, the Institute of International Law, of which he was president in 1895 and became honorary president in 1900.

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He took an active and important part in many Continental meetings and conferences. Moreover, he extended to foreign scholars a most kindly, delightful and constant hospitality, ably assisted by Mrs. Westlake, at his London home, River House, on the Chelsea Embankment, and at his country house near St. Ives in his native Cornwall. The writer recalls with gratitude days of pleasure under his roof and long walks over the hillsides yellow with broom and purple with heather in which, even near the close of life,.Dr. Westlake turned with unchanging zeal and undiminished power to the discussion of the principles of international law as he clearly saw and ardently advocated them.

More Aspects of the Book

He must be regarded as a most potent and useful factor in assimilating English and Continental views and practice. Services of that sort have far more than local or temporary value. The translation of his work into the French tongue aids in that very purpose and the service of Dr. Goul6 and the highly appreciative and discriminating preface of Professor de Lapradelle deserve the thanks of those who, like the writer, believe that uniformity of law is one of the important contributions to good will and the maintenance of good relations between nations.


It would be presumptuous to discuss the French of Dr. Goul6. The translation seems faithful. The index of the English edition, covering 35 pages, is necessarily rewritten and rearranged under different letters in the translation and appears as “Table Analytique.” The tables of contents and of decisions cited are retained but are shifted from the beginning to the end of the volume in the translation.

Book Review Details

This legal book review was published in:

The American Journal of International Law,Vol. 8, No. 2 (Apr., 1914), pp. 406-408Published

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