Sir,—Demands for the punishment of the ex-Kaiser have produced many "curiosities of literature," sometimes even over the signatures of men deservedly respected as authorities upon subjects which they have made their own; but ne sutor supra crepidam. A.B.,[4] for instance, wrote of the Kaiser as guilty of "an indictable offence." X.Y.[4] naturally protests against this misuse of terminology, which is, indeed, far more specifically erroneous than was the popular application, which you allowed me to criticise, of the terms "murder" and "piracy" to certain detestable acts perpetrated under Government authority.[5] He goes on to give an elaborate, though perhaps hardly necessary, explanation that breaches of that generally accepted body of rules to be followed by States inter se, which is known as "international law," can be enforced, in the last resort, [034]only by hostile State action—a fact which he seems to suppose may entitle him to qualify the rules as "a mockery."
X.Y.[4] then proceeds to give an account of the so-called "private international law" which surely needs revision for the benefit of any "man in the street" who may care to hear about it. X.Y.[4] defines it as "that part of the law of each separate country, as administered in its own Courts, which deals with international matters," and he enumerates as such matters "prize, contraband, blockade, the rights of ambassadors." In fact none of these matters are within the scope of "private international law," but are governed by "(public) international law," non-compliance with which by the Courts or subjects of any State is ground of complaint for the Government of any other State thereby wrongfully affected.
The so-called "private international law," better described as "the conflict of laws," deals, in reality, with the rules which the Courts of each country apply, apart from any international obligation, to the solution of questions, usually between private litigants, in which doubt may arise as to the national law by which a given transaction ought to be governed—e.g. with reference to a contract made in France, but to be performed in England. There is here a "conflict," or "collision," of laws, and it is decided in accordance with rules adopted in the country in which the litigation occurs. These rules have no "international" validity, and the term is applied to them, merely in a popular way, to indicate that a Court may have in some cases to apply the law of a country other than that in which it is sitting. The unfortunate opposition of "public" to "private" international law has to answer for much confusion of thought. "International law," properly so called, has, of course, no need to be described as "public" to distinguish it from rules for solving the "conflicts" of [035]private laws, which are "international" rules only in the sense that laws are sometimes applied in countries other than those in which they are primarily binding.
I am, Sir, your obedient servant,
T. E. HOLLAND
Oxford, December 19 (1918).
A full discussion of the topics dealt with in the last paragraph of this letter may be found in my Elements of Jurisprudence, edit. xii., pp. 409-425. A translation, by Professor Nys, of the chapter in which those pages occur, as it stood in edit. i., appeared in the Revue de Droit International, t. xii., pp. 565, &c.[036]