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a crime, would be justly regarded as odious. (De Felice, Droit de la Nature, etc., tome 2, lec. 25; Vattel, Droit des Gens, liv. 3, ch. 8, § 155; Leiber, Political Ethics, b. 7, §§ 24, 25; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 1; Polson, Law of Nations, sec. 6; Wildman, Int. Law, vol. 2, p. 24; Garden, De Diplomatie, liv. 6, § 7; Rayneval, Inst. du Droit Nat., liv. 3, ch. 4; Paley, Moral and Pol. Philosophy, b. 6, ch. 12; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 6; Real, Science du Gouvernement, tome 5, ch. 2, sec. 6, § 5; De Cussy, Droit Maritime, liv. 1, tit. 3, § 24.)

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§ 21. But we must distinguish between a treacherous murder and a surprise, which is always allowable in war. small force, under cover of the night, may pass the enemy's lines, penetrate to his headquarters, surprise the general, and take him prisoner or attack and kill him. It was his duty to guard against such attacks, and to prevent a surprise. Such acts are, therefore, not only justifiable, but commendable; it is the disguise and treachery which gives to the deed the character of murder or assassination. The conduct of Leonidas and the Lacedaemonians, who broke into the enemy's camp, and made their way directly to the Persian monarch's tent, was justified by the common rules of war, and did not authorize the king to treat them more rigorously than any other enemies. The act of Mutius Scaevola, in entering, in disguise, the tent of Porsenna, with the intention of killing him, was praised by the age in which he lived, but would not be justified by the rules of modern warfare. (Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 4, §§ 15, 16, 18; Vattel, Droit des Gens, liv. 3, ch. 8, § 155; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 1; Phillimore, On Int. Law, vol. 3, §94; Rayneval, Inst. du Droit Nat., etc., liv. 3, ch. 4; Ortolan, Diplomatie de la Mer, tome 2, liv. 3, ch. 1; De Felice, Droit de la Nat., etc., tome 2, lec. 25; Riquelme, Derecho Pub. Int, lib. 1, tit. 1, cap. 12; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 6; De Cussy, Droit Maritime, liv. 1, tit. 3, § 24.)

§ 22. War makes men public enemies, but it leaves in force all duties which are not necessarily suspended by the new position in which men are placed toward each other. Good faith is, therefore, as essential in war as in peace, for without it hostilities could not be terminated with any degree of

safety, short of the total destruction of one of the contending parties. This being admitted as a general principle, the question arises, how far we may deceive an enemy, and what stratagems are allowable in war? Whenever we have expressly or tacitly engaged to speak truth to an enemy, it would be perfidy in us to deceive his confidence in our sincerity. But if the occasion imposes upon us no moral obligation to disclose to him the truth, we are perfectly justifiabe in leading him into error, either by words or actions. Feints, and deceptions of this kind are always allowable in war. It is the breach of good faith, express or implied, which constitutes the perfidy, and gives to such acts the character of lies. (Phillimore, On Int. Law, vol. 3, §94; Vattel, Droit des Gens, liv. 3, ch. 10, §§ 174, 177; Leiber, Political Ethics, b. 7, §§ 24, 25; Wildman, Int. Law, vol. 2, pp. 24, 25; Grotius, De Jur. Bel. ac Pac., lib. 3, cap. 8, §§ 4, 5; Puffendorf, de Jure Nat. et Gent., lib. 8, cap. 6, § 6; Garden, De Diplomatie, liv. 6, §7; Bello, Derecho Internacional, pt. 2, cap. 6, §§ 1, 2; Paley, Moral and Pol. Philosophy, b. 3, pt. 1, ch. 15; De Cussy, Droit Maritime, liv. 1, tit. 3, § 24.)

§ 23. Stratagems, in war, are snares laid for an enemy, or deceptions practiced on him, without perfidy, and consistent with good faith. They are not only allowable, but have often constituted a great share of the glory of the most celebrated commanders. "Since humanity obliges us," says Vattel, "to prefer the gentlest methods in the prosecution of our rights, if, by a stratagem, by a feint devoid of perfidy, we can make ourselves masters of a strong place, surprise the enemy, and overcome him, it is much better, and is really more commendable to succeed in this way than by a bloody seige or the carnage of a battle. Thus, feints and pretended attacks are frequently resorted to, and men or ships are sometimes so disguised as to deceive the enemy as to their real character, and, by this means, enter a place or obtain a position advantageous to their plan of attack or of battle. But the use of stratagems is limited by the rights of humanity and the established usages of war. Even if devoid of perfidy, and consistent with the faith due to the enemy, they must not violate commercial usage, or contravene the stipu

lations of particular treaties. Vattel mentions the case of an English frigate, which, in the war of 1756, is said to have appeared off Calais and made signals of distress, with a view of decoying out some vessel, and actually seized a boat and some sailors who generously came to her assistance. If the fact be true, that unworthy stratagem deserves a severe punishment. It tends to damp a benevolent charity which should be held sacred in the eyes of mankind, and which is so laudable even between enemies. Moreover, making signals of distress is asking assistance, and, by that very action, promising perfect security to those who give the friendly succor. Therefore the action attributed to that frigate implies an odious perfidy." Ortolan refers to the conduct of an English frigate and two vessels at Barcelona, in 1800, as of the same character as that of the English frigate off Calais, described as above, by Vattel. On the 4th of September, 1800, the English took forcible possession of a Swedish vessel, then neutral, near Barcelona, put a large number of English soldiers and marizes on board, and, entering the harbor in the night, under this neutral flag, and in a neutral vessel, surprised and captured two Spanish frigates which were lying at anchor. Ortolan denounces this as an act of perfidy, and as not being a stratagem allowable by the usages of war. This act may be viewed in different lights. So far as the surprise of the Spaniards is concerned, it was a legitimate stratagem. It was their duty to be prepared for such an attack, and they were properly punished for their neglect to take the proper and ordinary precautions to prevent it. So far as the seizure, and the use of the Swedish vessel, and the treatment received by its captain and crew at the hands of the English, are concerned, it was a gross violation of neutral rights which would have justified Sweden in declaring war, on satisfaction being refused. As between Spain and Sweden, it was a gross neglect of neutral duty, on the part of the latter, in not requiring England to restore the captures thus unlawfully made under the Swedish flag. With respect to the actual attack made by the English under a false flag, it was a direct violation of their own maritime laws and the established usages of nations, as will be shown in the next paragraph. (Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 1,

§§ 8, 17; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 1; Leiber, Political Ehtics, b. 7, §§ 24, 25; Wildman, Int. Law, vol. 2, p. 25; The Peacock, 4 Rob. Rep., p. 187; Ortolan, Diplomatie de la Mer, tome 2, liv. 3, ch. 1; Martens, Precis du Droit des Gens, §274; Rayneval, Inst. du Droit Nat., etc., liv. 3, ch. 4; Vattel, Droit des Gens, liv. 3, ch. 10, § 178; Bello, Derecho Internacional, pt. 2, cap. 6, §2; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 12; Paley, Moral and Pol. Philosophy, b. 3, pt. 1, ch. 15.)

§ 24. We will now inquire how far stratagems of this kind are allowable at sea, or rather how far a vessel may act under false colors. "To sail and chase under false colors," says Sir William Scott, "may be an allowable stratagem in war, but firing, under false colors, is what the maritime law of this country (England) does not permit; for it may be attended with very unjust consequences; it may occasion the loss of the lives of persons, who, if they were apprised of the real character of the cruiser, might, instead of resisting, implore protection." It will be noticed that the prohibition to fire under false colors, is here put upon the ground of local law, no reference being made to any general rule of international jurisprudence. "It is a rule of the law of nations," say Pistoye et Duverdy, "that, on the sea, a vessel cannot attack another vessel before having made known its nationality, and having put the vessel which it encounters in a position of declaring its own nationality." The ancient rule of maritime law, as stated by Valin, was, that the affirming gun (coup de semonce ou d'assurance) could be fired only under the national flag. Such were the provisions of the ancient ordonnances of France. But article thirty-three of the Arrêté du 2 prairial merely prohibits the firing a shot (tirer à boulet) under a false flag, and the law of the 10th of April, 1825, article third, provides that captains and officers, who commit acts of hostility under a flag other than that of the state by which they are commissioned, shall be treated as pirates. Ortolan says that the affirming gun may be fired under false colors, but all acts of hostility must be under the national flag. Massé and Hautefeuille seem to adobt the opinion that the affirming gun (coup de semonce) should be fired only under national colors. But as such gun is in no respect an act of hostility,

we can perceive no good reason why it may not be fired under false colors. (Wildman, Int. Law, vol. 2, p. 25; The Peacock, 4 Rob. Rep., p. 187; Pistoye et Duverdy, Traité des Prises, tit. 5, ch 1; Massé, Droit Commercial, tome 1, § 307; Hautefeuille, Droit des Nations Neutres, tome 4, p. 8; Valin, Traité des Prises, ch. 2, sec. 1, § 9; Ortolan, Diplomatie de la Mer., tome 2, lib. 3, ch. 1; Lebeau, Nouveau Code des Prises, tome 6, pp. 223, 283; De Cussy, Droit Maritime, liv. 1, tit. 3, § 25.)

§ 25. Deceitful intelligence may be divided into two classes; false representations made in order that they may fall into the enemy's hands and deceive him, and the representations of one who feigns to betray his own party, with a view of drawing the enemy into a snare; both are justifiable by the laws of war. Commanders sometimes make false representations of the number and position of their troops, and of their intended military operations, for the purpose of having them fall into the enemy's hands, and of deceiving him; this is not only allowable, but is regarded as a commendable ruse de la guerre. If an officer deliberately makes overtures to an enemy, offering to betray his own party, and then deceives that enemy with false imformation, his procedure is deemed infamous; nevertheless, the enemy has no right to complain of the treachery, for he should not have expected good faith in a traitor. But if the officer has been tampered with by offers of bribery, he may lawfully feign acquiesence to the proposal, with the view to deceive the seducer; he is insulted by the attempt to purchase his fidelity, and he is justified in revenging himself by drawing the tempter into a snare. "By this conduct," says Vattel, "he neither violates the faith of promises, nor impairs the happiness of mankind, for criminal engagements are absolutely void, and ought never to be fulfilled, and it would be a fortunate circumstance if the promises of traitors could never be relied on, but were, on all sides, surrounded with uncertainties and danger. Therefore, a superior, on information that the enemy is tempting the fidelity of an officer or soldier, makes no scruple of ordering that subaltern to feign himself gained over, and to arrange his pretended treachery so as to draw the enemy into an ambuscade." (De Cussy, Droit Maritime, liv. 1, tit. 3, § 24;

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