International law; Natural law; War (International law)
II. But it will be proper to consider how far the lawfulness, which
Virgil speaks of, extends. For the term lawful sometimes implies
whatever is just and pious in all respects, although the pursuit of
a different course may perhaps be more laudable: according to the
expression of St. Paul, who says, "all things are lawful to me, but
all things are not expedient." Ulpian is speaking of a seller, who, at
the expiration of a certain period, is not answerable for the safety
of goods, which a buyer has neglected to take away, says he, will yet
think himself bound in EQUITY to preserve them with all imaginable
care. On some occasions when it is said, that men may LAWFULLY do a
thing, the expression only means that doing such act will not subject
them to human and legal penalties, but it by no means indicates
that the action is strictly conformable to the rule of religion and
morality. Thus among the Lacedaemonians and Egyptians stealing was
allowed: an indulgence that by no means took away the GUILT of theft.
Cicero in the fifth of his Tusculan questions, speaking of Cinna,
beautifully and justly points out this abuse of the word, LAWFUL. "He
seems to me, _says he_, a wretched man indeed for having done those
acts, and for having been in a situation, where they might be thought
lawful. It can never be lawful for any man to do wrong: but we fall
into a great mistake in the use of that word: for we consider a thing
to be lawful, which any one may do with impunity." This is the meaning,
in which the term is generally understood, as the same orator, in
addressing the judges in behalf of Rabirius Posthumus, observes, "it
behoves you to consider, what is becoming your character, and not what
the rigour of the law allows you to inflict. For if you consult the
full extent of your authority, you may make away with any citizen you
please."
In the same manner legislators, as it was proved in a former book of
this treatise, are not accountable, in their legislative capacity, to
any human tribunal, for the laws, which they make, yet they cannot, in
a moral point of view, avail themselves of this transcendent power to
enact a thing that is evidently unjust. In this sense we often meet
with a distinction made between what is proper or right, and what is
lawful. Thus Cicero, in his speech for Milo, makes the LAW OF NATURE
the standard of what is RIGHT, and LEGAL AUTHORITY, the standard of
what is lawful.
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