Complete Works. Hamilton AlexanderЧитать онлайн книгу.
And here the rule of Cicero
"Primus Igetur leges oportet contendere comparando utra lex ad Majores hoc est ad utiliones ad honestiones ac magis necessarios res pertineat, ex quo confissitur ut si leges duae aut si plures aut quot quot erunt conservari non possunt qua discrepent inter se ea maxime conservanda sunt quae ad maximas res pertinere videatur."
Many of these Argument suppose Trespass as repugnant to the law of nations -- It may however receive a construction consistent with all. And to give it this Construction is the duty of the Court.
We have seen that to make the Defendant liable would be
TO VIOLATE the laws of nations and forfeit character
To violate a solemn treaty of peace & revive state of hostility
To infringe Confedered & endanger peace of the union
CAN we suppose all this to have been intended by the Legislature
The LAW cannot suppose it
And if it was intended the act is void!
viner Title Law 1st p. 15 Letter C p. 3 Year Books Ed. 4 P. 12
A New case must be determined by the law of Nature and the Public good. Ubi lex tacet Judex loquitur!!!
Mirror Cap 2 § 3
Says that cases were judged according to Equity before the customs of the realm were written & made certain, Vide I Chan. Reports, 8 page. of Vindication of the Court of Chancery
Molloy B 1 Chap: 2 § 5 = 6 = 12
2.
A judgment contrary to the laws of Nations is a good cause of war.
Coke. Lytt. P. 11 b 4 Black Com: P 66 & 67 3 Burrows Rep.P. 1480.1481
3.
The jus gentium and jus belli are part of the common law.
Vatel's Preliminaries P. 8 § 28 Book 3 Chap. 12 particularly § 192
5.
The voluntary law of Nations is as intrinsically obligatory as the necessary law; which enjoins its observance.
Grotius B 3d Chap. 10 Vatel Preliminaries Page ⅚ § 16-17
4.
Nations are under two kinds of obligation internal and external -- the one founded on the necessary the other on the voluntary law of nations.
6.
By the necessary, the party making an unjust war acquires in foro conscientiae no right, and is bound in foro conscientiae to make restitution for all damages --
Vatel Book 3 Ch 12 before quoted Idem C 13 § 195 & 196 Molloy B 1 Ch. 1 P. 12 to 14 § 12 and 13 --
7.
But by the voluntary law the party in the wrong has equal rights with the party in the right: and the effects of war on both sides are the same.
Burlamaque Vol 2 P. 302 § 33 to 37 -- Grotius B 3 6 P 500 § 2
Rutherford Vol 2 B 2d Ch 9 Page 508 to 512 -- Quare
Rutherford Book 9 Ch 9 p. 563/564 578 -- to 580
8.
And this is the Case by the better opinion in wars not solemn as well as in solemn wars --
Bynkershoeck Liber 1 Caput, 11 P
Hutcheson Vol. 2 P. 357
Burla: Vol 2 p. 263 § 44
Cunningham Pos Insuram P. 276 Hales H. P. C. Vol 1 P. 160 to 164
Burlamaque p. 271 21
The formalities which constitute a solemn war are arbitrary.
Vatel B 3 Ch 18 P. 111 § 295
Burlam: P 302 33 to 37
The effects of war are the same between two great parts of the same empire as between two Independent nations.
Inst Ins: Lib II Id I 17 Molloy Book 1st Ch 1 Page 14 § 13 Grotius 500 Read before 581 Idem P 586 Note 5 Domal Vol 1 P. 455 § 17
The general proposition of the jus belli is that "ea quae ab hostibus Capimus statim jure gentium nostra sunt.
Burla: Vol 2 P, 290 § 1 Viner Title Lawful Prize PI 1 & 2 2 Black Comm. P. 401\402 No. 1 Brooke Title Propertie P 161\167 C No. 18 No. 30
Moveable goods belong to the Captor for ever after the battle is over; or according to some common law, adjudication if fresh perfect be not made the same day. Ante occasum solis
Grotius B 3 Ch 20 § 22 P. 701 Hutchison Vol. 2 P. 363 & 364 Vatel B 4 C 3 § 30 Page 123
And the fruits of immoveable goods while in possession.
Register P. 102 Brooke Title Propertie Page 161b\167 No. 18\30 Year Books 7 Ed 4 Page 14 fol. 5
The common law carries the rights of war so far Individual as to give the Captor a property in the Prisoner -- and even transfers the absolute right of real property.
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Grotius Lib 3d Ch 20 § 22 Page 701 Eng \ 907 Latin
How settle Grotius' meaning about the profits fructus usufructus
Idem Lib 3 Ch 9 § 13 No. 2 page 868
Justinians Institutes Lib II Til IV Intere
Unfractus is nearly equivalent to an issue at fractus usufructus profits common law.
The Idea that in one place he speaks of a new grant in another of restitution is not accurate --
§ 21 procedure proves this --
The Context in both Cases relates to restitution. And the verb CONCEDERE is as applicable to surrender as to a new grant.
Vatel understands Grotius in the same sense for he refers to him!
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Burl: Vol 2 P 295 to 98
The right over real property commences according to some from the time of Capture --
Grotius B 3d Ch 6 § 4 -- 1 p 583 C 20 § 12 = 2 P 699
