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NOTES FOR ARGUMENT IN THE TRESPASS CASE
ОглавлениеARGUMENT
| A. | Introduction. Question concerns National faith -- character -- safety -- Confederation | |
| B. | Serious because wrong judgment good cause of war | |
| C. | Present case somewhat new -- law of reason Public good ubi lex tacet judex loquitur | |
| D. | Question embraces whole law of nations -- | |
| E. | Where found? Answer Reason Opinions of Writers Practice of Na. Objection Writers differ: Ans. So do men in every thing. Hardw Jay civil law not bind: Civil law not Law of N. | |
| F. | Jus gentium & Jus belli, part of common law Coke 15 great heads! | |
| Pul: p. 2 to 7 put 6-17-22 | G. | Divided into Natural, Necessary, Internal, Positive external |
| Last | ||
| H. | Subdivided Voluntary -- customary Conventional | |
| I. | Voluntary defined=System of Rules & And is intrinsically obligatory; enjoyed by necessary | |
| K. | Two sorts of obligations internal, external, | |
| L. | Internal like obligation to pay a debt barred by Statute of limitations. Or to observe Parol agreement not binding St. fraud | |
| M. | By natural, party in the wrong acquires no rights in War By the voluntary both parties equal rights Effects on both sides same -- The Rule has different objects -- Peace of Nations security of purchases -- -- Acknowleged universally thought and efferent princ -- Some ascribing to a positive law Tacit Consent in making peace Necessity true Rule -- | |
| HENCE justice or Injustice of the war -- makes no diff: | ||
| N. | Objection this not a Solemn war -- Answer by the best opinions & Practice no diff -- Date Bynker Stroeck! But the War between G.B. &.U.S. was a solemn war Formalities arbitrary Act of Parliament authorizing hostilities Declaration of Ind. admits open War Congress by a formal resolution authorizes against British -- | |
| Journals of Cong. P. 245 | O. | 2. Objection no war between Independ: Nations objection not good in our Mouths Public acts contradict: claim sanction Best opinions to the contrary. 3 Obj. |
| P. | State of New York has no Common law of Nations -- Answer 1. This result from Univ. law 2. Our constitution adopt common law 3. The United States have formally assented for us. | |
| what are the effects of War! GREAT INQUIRY | Q. | Ea quae & true rule: Molloy: Plead Moveables for ever Immoveables & fruits during possession: ROMANS 5 No Precedent of an Action Common law: Prisoner: Real property -- Proves that justice or injustice not considered For the Civil law of every Country presumes its Sovereign in the right |
| R. | Objection: Vatel says property of immoveables not complete till peace This means full right of domain to aliens. | |
| S. | Postliminum what? Regulates rights of Natives within itself Has nothing to do with claim of damages, Rights of contending parties or neutral nations. | |
| OBSERV: | The laws of war permit the Conqueror to take all the profits of the land: to which right in practice has succeeded Contribution. But most mitigated hostility permit making use of deserted property -- | |
| CONS | The enemy having exercised this right through Def. he cannot be answerable | |
| T. | Nor can it be done without a violation of the Treaty of peace. Which includes Amnesty | |
| CONS | Object: Congress had no right Answer Then Cong: nothing But Congress had a right Our Sovereignty began by a Federal act -- Externally exists only in the Union Declar of Ind: which is FUND,( Fundemental) constitution of each State asserts the Power of Congress to levy war conclude peace, contract alliances | |
| Proceedings P. 12 | New York Convention approves, not authenticates Congress, this had in fact complete Sovereignty -- | |
| Art. 30 - ART. IX | -- Union know in the Constitution. Cong: thou Abrigm leaves Congress full powers of War Peace and Treaty POWER of making Peace implies power of making conditions "Lex est cuicunque aliquis aliquid concedit concedere videtur et id sine quo res ipsa effe non potuit" 16 Coke 52 Does not include power of dismembrement but of making all reasonable conditions And without remission of damages, war continues | |
| Q. | How give away rights of CITIZENS OF NEW YORK | |
| Vatel B. 2 (7 § 81 p. 147 | Ans. Citizens gave them that power. | |
| The Power too results from the Eminent domain Hence injury from the Government authorizes taking the property of innocent subjects. Hence claim of damages for Injuries to Individuals is in the Public | ||
| Obj: | Those Injuries only forgiven which are in relation to the war -- Relationship to the War consists in the Capture of the City. Lastly it would be a breach of the Confederation -- Congress have made a treaty A breach of that would be a breach of their constitutional authority Power of Treaty Legislative, Proclamation a law | |
| Obj. | Sovereign authority may violate Treaties -- Bold Ground admits the Intention But within, Each State has no such power Having delegated the management of its foreign concerns to Congress To whom alone the consideration of these, reason of State belongs As well a County may alter the laws of the State as the State those of the Confederation. | |
| Obj. | It has been said Legislature may alter laws of Nations | |
| Elen. Jurispruden:p. 62 Vatel B 3 C12 p. 76 | Not true in theory Example of Ramsom bill, nothing to the purpose. If such a power does exist in our Government 'tis in Congress. | |
| OBJECT | Accession to Conf: was act of Legislature why may not another act alter it? | |
| ANs: | UNION preexisted | |
| And | Act of accession not a law but a CONTRACT which one part cannot release itself from One part of an Empire may dismember itself, But this supposes dissolution of the Original contract While Confed: exists its cons: Autho: paramount But how are the JUDGES to decide? Ans: Cons: giving Ind: Power only in prize causes in all others Judges of each State must of necessity be judges of United States -- And the law of each State must adopt the laws of Congress. Though in relation to its own Citizens local laws might govern, yet in relation to foreigners those of United States must prevail. It must be conceded Leg: of one State cannot repeal law of United States All must be construed to Stand together! | |
| De In: L 4 N°. 145 | 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 | According to others when there is a firm possession which consists in the land being enclosed by fortifications. | |
| Vatel B 3 C 14 P 83 § 204 | Postliminum is "that right in virtue of which persons and things taken by the enemy are restored to their former state when coming again under the power of the nation to which they belonged." | |
| Burl: Vol 2 P 583 § 7 I Grotius B "3d3 C 20 § 15 P 699 Barbeyrars note thereupon Vatel B 4 Ch 2 § 18 19 20 & 21 P. 120 & 121 | Every treaty of Peace includes an Amnesty Express or virtual | |
| Vide Proceedings of Con. P. 12 | The Convention of New York does not pretend to give validity to the act of Independence but merely to approve it. | |
| Article 30 p. 26 | The United States are known in the Constitution. | |
| Vide Article 9th. | Congress by the Confederation reserve exclusively all the powers of War peace & Treaty | |
| Vatel B 2 C 7 § 81 Page 147 | The property of all the Individuals of a State is the property of the State itself in regard to other Nations. This is what is called the right of Eminent domain. | |
| Elements of Jurisprudence p. 62 Vatel B 3 C 12 p. 76 para: 3 | In theory one nation has no right to alter the general law of nations. | |
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| RULES OF CONSTRUCTION OF STATUTES | ||
| 4 Coke Rep. P. 13a B ditto page 118 a & b | A Statute against Law and reason especially if a private Statute is void. | |
| 10 Mod. 245 Bacon Title Statute 648 | Statutes are to be construed by the rules of the common law. | |
| Venir Title Maximo Letter pa. 351 fol 1 4 Rep. 71 Raymond 7 Coke Lyttleton 49 B 1: C 59 | And if against the general policy of the common law are to be qualified . . . and controuled by it. | |
| Reports Lib 4 P 71 avenir Title Statutes p 514 fol 27. 30. 31 Idem 524 par 119 Idem 527 par 145 Idem 528 par 154 & 156 1 Showers par 455 | Especially if the provisions are general in which case construction may be made against the letter of the Statute to render it agreeable to natural justice. | |
| Domat Vol. 1 P. 7 § 2 Puff B 5 C 12 fol 61 | Many things within the letter of a Statute are not within its equity and vice versa. | |
| Laws giving remedy where there was none before are to be construed strictly. | ||
| Bacon Title Statute fol 653 No. 92 | No Statute shall be construed so as to be inconvenient or against reason. | |
| Plowder 466 & 467 | Statutes to be construed according to the Intention of the Legislature, which intention is to be ascertained by supposing the framers of the law wise and honest and well acquainted with all the merits of the case to be determined upon, and under this supposition asking ourselves what could be the intention of wise, honest and well informed men in this particular case? | |
| vide Examples from P. 16 to Page 18. Celebrated instance of law of Bologna NO INTERPRETATOR Statute Gloucester bishops Norwich all Bishops Bonhame Case 8th Coke several strong examples in which Statutes have been adjudged void. STATUTE OF FRAUDS executory Contracts. STATUTE de donis Fine ipsa jure nullus: Discontinuances STATUTES of bankruptcy: All persons in autre droit excepted: contrary to words of the Statute James I, as D. H. acknowledges. STATUTE OF GLOUCESTER alienation by father unless by sons & DAMAGES dissuse Out of Entry: person found tenant Construed not to extend to tenant by act of another or of law. STATUTE MUST have several exceptions. 'INVOLUNTARY trespass American Officer in Quarters! American Vessels Captured at Sea in hands of Neutrals Condemnation makes no diff General Howe, Clinton otherwise state of War continues. | ||
| Objection | Where Stop but where laws of Nations stop us. This would render act Nugatory Ans: No objection if it did. But 'twould not. Court here need only pay BRITISH subjects not included Might still operate against our own citizens Act would still answer several purposes To give Remedy against Assignees of Deserters For EXECUTORS for injuries to real property AGAINST EXECUTORS for Inj. both to real & personal. IMAGINATION must influence Note law respecting taking oath of allegiance to commence a suit. Charter of New York holds pleas real, personal & mixed as fully as any Court of record of G. B. or Colony of New York Never construed to extend to granting New trials, etc. | |
| CONSTITUTION every male Inhabitant IN LAW as in Religion, Letters &c. CERTAINTY of the act in vain contended for -- Phrase "Military order" vague -- Not passport safe Conduct parole Permission to occupy Our justification is public enemy hiring house for value Conf. But the greater implies the less -- This is reasoning by Equity We claim benefit of posterior law FIDES etc. | ||
| Jacob Law Dictionary Title 'Inhabitant' 6 Reports 60 a Latches Reports P 13 Miller v Dovey Stiles 65 Smith v. Stow Dyer 66 b | The word Inhabitant means Nothing can be a Trespass which is involuntary | |
| Cok Rep Book 2 Lefford's Case p. 51 Bacons Ab.Title R: Letter L P. 367 | By several authorities the Assignees of Dessertors could not maintain an action of trespass. Nor Executors nor heirs for injuries to real property. |
