International law; Natural law; War (International law)
III. The matter that necessarily comes next under consideration
is the case of those, who screen delinquents from punishment. It
was before observed that, according to the law of nature, no one
could inflict punishment, but a person entirely free from the guilt
of the crime which he was going to punish. But since established
governments were formed, it has been a settled rule, to leave the
offences of individuals, which affect their own community, to those
states themselves, or to their rulers, to punish or pardon them at
their discretion. But they have not the same plenary authority, or
discretion, respecting offences, which affect society at large, and
which other independent states or their rulers have a right to punish,
in the same manner, as in every country popular actions are allowed for
certain misdemeanors. Much less is any state at liberty to pass over
in any of its subjects crimes affecting other independent states or
sovereigns. On which account any sovereign state or prince has a right
to require another power to punish any of its subjects offending in the
above named respect: a right essential to the dignity and security of
all governments.
IV. But as it is not usual for one state to allow the armed force
of another to enter her territories under the pretext of inflicting
punishment upon an offender, it is necessary that the power, in
whose kingdom an offender resides, should upon the complaint of the
aggrieved party, either punish him itself, or deliver him up to the
discretion of that party. Innumerable instances of such demands to
deliver up offenders occur both in sacred and profane history. Thus
the other Israelites required the Benjamites to deliver up offenders,
Jud. xx.--And the Philistines demanded of the Hebrews the surrender of
Samson, as a criminal, Jud. xv.--In the same manner the Gauls made a
demand that the Fabii should be surrendered for having fought against
them. Sylla too, as Sallust informs us, urged Bocchus to deliver
up Jugurtha, and by so doing to relieve the Romans from the bitter
necessity of implicating HIM for his erroneous conduct in the same
guilt with that most desperate villain. Yet all these instances are to
be understood not as strictly binding a people or Sovereign Prince to
the actual surrender of offenders, but allowing them the alternative of
either punishing or delivering them up. For it was upon this ground,
as we are informed, that the Eleans made war upon the Lacedaemonians,
because the latter neglected to punish their subjects, who had
committed aggressions upon that people; that is, they had neither
punished nor delivered them up: for the obligation may be taken either
way, that being left to the choice of the aggrieved person, or nation,
in order to make the satisfaction the more complete.
Public-domain text, read in full here on John Shaqi.
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