Sidebilder
PDF
ePub

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 natione. 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, so far only as it might affect the interests of foreigners of certain nation. alities, but not so far as to affect those of the members of the nation or of foreigners generally, is obvious. If it were desired to give these rules such a general character as would, so far as the courts of the assenting nations are concerned, solve and terminate the Conflict of Laws, the fol. lowing clause might 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 the Code, but also to their own members, and to foreigners of whatso. ever 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. 8. Supreme Court Reports, 700. Bluntschli, (Droit International Codifié, Art. 18,) adds the restriction that sufficient 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 provisions 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., SS 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 “State" is by frequent usage appropriate to designate a political body noi independent; and the term “ nation " seems preferable for that which is independent. A nation is here defined 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 page 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 0. Georgia, 5 Peters' U. 8. Supreme Court Reports, 1; Mackey v. Coxe, 18 Horard's U. 8. Supreme Court Reports, 100; Goodell o. Jackson, 20 Johnson's Reports, (New York,) 693, and 188; Lawrence, Com. sur Wheuton, 264.

Use of the term "nationin 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 personin 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 whomsoever 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.

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 indended solely for the mutual convenience of nations and of their members.

The fourth contains provisions intended solely for the preseroation of peace.

The same.

10. The SECOND DIVISION of the FIRST Book has two PARTS.

The first Part defines the private rights of persons,' as affected by the relations of nations.

The second regulates the administration of justice in respect to such rights.

? Perhaps this should be all persons whatsoever ; see note to Article 1.

The same.
11. The SECOND Book has three DIVISIONS.
The first Division treats of belligerents ;
The second of allies ;
The third of neutrals.

« ForrigeFortsett »