DRAFT OUTLINES OF AN INTERNATIONAL CODE. PRELIMINARY ARTICLES. ARTICLE 1. Adopting Clause. 2. "Nation" defined. 3. Use of the term "Nation" in this Code. 6. "Subject" and "Citizen" defined. Adopting clause. Article 1. The following rules are established and declared, by the nations assenting hereto, as an International Code, by which those nations, and their members, respectively, shall be governed in their relations with each other. As to the extent to which existing special treaties will be abrogated, see repealing clause. By another article any two nations may, by special treaty, modify the application of any of the provisions of this Code, as between themselves and persons and things subject to their exclusive jurisdiction. A question arises, how far the rules of this Code shall be applied by the nations uniting in it to other nations and their members. There is a large class of subjects, chiefly those known under the generic title of PRIVATE INTERNATIONAL LAW, in which the advantage of a uniform rule depends partly upon its being a rule resting not so much upon convention, binding only the nations which accede to it, as upon principles of jurisprudence, applicable in all courts, and proper to be imposed upon persons of every nationality, without reference to the question whether the nations of which such persons are members have agreed in the adoption of the rule. The provisions of Division Second of Book First are of this general nature. It may be a question, therefore, whether the application of that Division ought to be restricted to the nations uniting in the Code, and to the members of such nations. When, for instance, a question arises as to the right of a foreigner to hold real property, or to reclaim a wreck, or to claim for his ship the privileges of a domestic ship, the provisions of the First Division will be found not to apply, unless he be a member of a nation uniting in the Code. But, if the question arises in any of the courts of the nations uniting in the Code, whether a foreign marriage or divorce is valid; whether a foreign contract is to be judged by the law of one place, or that of another; or a question upon any other of the rules contained in Division Second, it may be thought that the rules prescribed by the Code should be applicable, without reference to the nationality of the parties. The inconvenience or incompleteness of a rule on such subjects of private right, which should be applicable to the transaction, as far only as might affect the interests of foreigners of certain nationalities, but not so far as to affect those of the members of the nation, or of foreigners generally, is obvious. If it is desired to give these rules such a general character as will, so far as the courts of the assenting nations are concerned, solve and terminate the Conflict of Laws, the following clause may be added to Article 1; And the provisions of Division Second of Book First, entitled PRIVATE INTERNATIONAL LAW, are to be applied, in each nation which is a party to this Code, not only to foreigners who are members of nations parties to this Code, but also to their own members, and to foreigners of whatsoever nation, except where a more restricted intention appears. "Nation" defined. 2. A nation is a people permanently occupying a definite territory, having a common government, peculiar to themselves, for the administration of justice and the preservation of internal order, and capable of maintaining relations with all other governments. 1 Phillimore's International Law, p. 77; 1 Kent's Commentaries, 188. And see Texas v. White, 7 Wallace's U. S. Supreme Court Reports, 700. Bluntschli, (Droit International Codifié, Art. 18,) adds the restriction that sffiucient guaranties of stability should be indicated. A people whose government is not independent, but vassal,—such as that of Egypt,--or incapable of maintaining international relations,such as those of the States of the American Union,-and a people occu pying no definite territory,—such as nomadic tribes in Asia and Africa, --or having abandoned one territory to take possession of another,—as in the case of the Mormon emigration,--are not nations, within the pro visions of this Code; although they may be regarded as such for some purposes, and the two latter classes may make treaties. Bluntschli, Dr. Intern. Cod., §§ 21, 22. Austin, (Province of Jurisprudence, p. 199,) cited by Lawrence, (Commentaire sur Wheaton, p. 155,) prefers to use the term in an ethnologic sense; and designates an independent political body as a "State." But. the word "States" is by usage appropriate to designate some political bodies not independent; and we prefer the term “nation" for those that are independent. We here define a nation as it exists as a political fact. For an eloquent discussion of the element of liberty or spontaneity in the right of nationality, see Fiore, Nouveau Droit International, par Pradier-Fodéré, vol. 1, ch. 1, p. 97, and note on p. 119. Fiore defines a nation thus: "Une libre et spontanée association de personnes qui, par communauté du sang, de langue, d'aptitude, par une affinité de vie civ“ile, de temperament, de vocation, sont aptes, et predisposées à la plus grande union sociale." As to the exceptional case of Indian or other subordinate tribes, within the territory of a nation, but having a quasi national existence of their own, see Cherokee Nation v. Georgia, 5 Peters' U. S. Supreme Court Reports, 1; Mackey v. Coxe, 18 Howard's U. S. Supreme Court Reports, 100; Goodell v. Jackson, 20 Johnson's Reports, (New York) 693, and 188; Lawrence, Com. sur Wheaton, 264. Use of the term “nation” in this Code. 3. Whenever the word "nation" is hereafter used in this Code, it signifies only a nation party to it, except when an intention to signify any nation whatever is expressed. Use of the term "person" in this Code. 4. Whenever the word "person" is used, it signifies only a person who is a member, or subject to the jurisdiction of, one of the nations, except when an intention to signify any person whatever is expressed. "Member" defined. 5. A member of a nation is a person who, according to the rules prescribed in the chapter on NATIONAL CHARACTER OF PERSONS, is one of the people composing such nation. 66 Subject" and "citizen" defined. 6. The members of a nation in which the sovereign power is vested in a particular person or persons, are called subjects; the members of a nation in which the sovereign power is vested in the people, are called citizens. Divisions of the Code. 7. This CODE is divided into two Books. The first treats of the relations of nations and of their members to each other, except as they are modified by a state of war. The second treats of the modifications in the relations of nations and of their members to each other, produced by a state of war. The same. 8. The FIRST BOOK has two DIVISIONS. The first Division, entitled PUBLIC INTERNATIONAL LAW, contains the rules respecting the relations of nations to each other and to the members of other nations. The second, entitled PRIVATE INTERNATIONAL LAW, contains the rules respecting the relations of the members of a nation to the members of other nations. The same. 9. The FIRST DIVISION of the FIRST BOOK has four PARTS. The first Part concerns the relations of nations to each other. The second concerns the relations of a nation to the persons and property of members of other nations. The third contains provisions intended solely for the mutual convenience of nations and of their members. The fourth contains provisions intended solely for the preservation of peace. The same. 10. The SECOND DIVISION of the FIRST BOOK has two PARTS. |