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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.'

§ 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 colours.2 To sail and chase under false colours,' says Sir William Scott, may be an allowable stratagem in war, but firing under false colours 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 colours 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 and 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

1 Ortolan, Diplomatie de la Mer, tome ii. liv. iii. ch. i.; Martens, Précis du Droit des Gens, § 274; Vattel, Droit des Gens, liv. iii. ch. x. § 178.

2 False colours are usual stratagems in war ('La Esperanza,' 1 Hagg. 90), but see par. 17, note 1.

The subject of employing false colours was much discussed during the 'Alabama' controversy with the United States, that Government frequently pressing the point on the British Government, especially in reference to the 'Orito' and the Alabama.' See United States case and the counter case, 1872.

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 ordinances of France. But article 33 of the Arrêté du 2 Prairial merely prohibits the firing a shot (tirer à boulet) under a false flag, and the law of April 10th, 1825, article 3, 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 colours, but all acts of hostility must be under the national flag. Massé and Hautefeuille seem to adopt the opinion that the affirming gun (coup de semonce) should be fired only under national colours. 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 colours.2

$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. The 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 information, 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 had been tampered with by offers of bribery, he may lawfully feign acquiescence to the proposal with a 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

Semoncer means to warn in a loud voice,' not to summon.

? The 'Peacock,' 4 Rob. Rep., p. 187; Pistoye et Duverdy, Traité des Prises, tit. v. ch. i.; Massé, Droit Commercial, tome i. § 307; Hautefeuille, Droit des Nations Neutres, tome iv. p. 8; Valin, Traité des Prises, ch. ii. sec. i. § 9; Ortolan, Diplomatie de la Mer, tome ii. lib. iii. ch. i.

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."

§ 26. Spies are persons who, in disguise, or under false pretences, insinuate themselves among the enemy, in order to discover the state of his affairs, to pry into his designs, and then communicate to their employer the information thus obtained. The employment of spies is considered a kind of clandestine practice, a deceit in war, allowable by its rules.2 'Spies,' says Vattel, ' are generally condemned to capital punishment, and not unjustly; there being scarcely any other way of preventing the mischief which they may do. For this reason, a man of honour, who would not expose himself to die by the hands of the common executioner, ever declines serving as a spy. He considers it beneath him, as it seldom can be done without some kind of treachery. The sovereign, therefore, cannot lawfully require such a service of subjects, except, perhaps, in some singular case, and that of the last importance. It remains for him to hold out the temptation of a reward, as an inducement for mercenary souls to engage in the business. If those whom he employs make a voluntary tender of their services, or if they be neither subject to, nor in any wise connected with, the enemy, he may unquestionably take advantage of their exertions, without violation of justice or honour.' No 'De Cussy, Droit Maritime, liv. i. tit. iii. § 24.

2 No one shall be considered as a spy but those who, acting secretly or under false pretences, collect or try to collect information in districts occupied by the enemy, with the intention of communicating it to the opposing force.-Brussels Conference, 1874, Art. 19. A spy if taken in the act shall be tried, and treated according to the laws in force in the army which captures him.—Ibid., Art. 20. If a spy who rejoins the army to which he belongs is subsequently captured by the enemy, he is to be treated as a prisoner of war, and incurs no responsibility for his previous acts.-Ibid., Art. 21.

During the late Franco-German war, the correspondents of the Figaro and Gaulois (French newspapers) were taken at Soulz-les-Forêts by the Prussians. It was suggested that they should be hanged as spies, but they were remitted by the Crown Prince, to be 'set free as soon as they can do no harm.'

authority can require of a subordinate a treacherous or criminal act in any case, nor can the subordinate be justified in its performance by any orders of his superior. Hence the odium. and punishment of the crime must fall upon the spy himself, although it may be doubted whether the employer is entirely free from the moral responsibility of holding out inducements to treachery and crime. That a general may profit by the information of a spy, the same as he may accept the offers of a traitor, there can be no question; but to seduce the one to betray his country, or to induce the other, by promises of reward, to commit an act of treachery, is a very different matter. The term spy is frequently applied to persons sent to reconnoitre an enemy's position, his forces, defences, &c., but not in disguise, or under false pretences.1 Such, however, are not spies in the sense in which that term is used in military and international law, nor are persons so employed liable to any more rigorous treatment than ordinary prisoners of war. It is the disguise, or false pretence, which constitutes the perfidy, and forms the essential elements of the crime, which by the laws of war, is punishable with an ignominious death. Article 101 of the rules and articles for the government of the armies of the United States provides, 'that in time of war, all persons not citizens of or owing allegiance to the United States of America, who shall be found lurking as spies, in or about the fortifications or encampments of the armies of the United States, or any of them, shall suffer death, according to the law and usage of nations, by sentence of a general court-martial. 2

1 Military men (les militaires) who have penetrated within the zone of operations of the enemy's army, with the intention of collecting information, are not considered as spies if it has been possible to recognise their military character. In like manner military men (and also non-military persons carrying out their mission openly) charged with the transmission of despatches, either to their own army or to that of the enemy, shall not be considered as spies if captured by the enemy. To this class belong also, if captured, individuals sent in balloons to carry despatches, and generally to keep up communications between the different parts of an army or of a territory.-Brussels Conference, 1874, Art. 22.

2

;

Vattel, Droit des Gens, liv. iii. ch. x. §§ 179, 182; Grotius, De Jur. Bel. ac Pac., lib. iii. cap. iv. § 18; U. S. Statutes, Act of April 10th, 1806 Bello, Derecho Internacional, pt. ii. cap. vi. § 2; Heffter, Droit International, § 250; Riquelme, Derecho Pub. Int., lib. i. tit. i. cap. xii.

By 29 and 30 Vict. 109 (Naval Discipline Act), s. 6, spies can be tried by a naval court-martial, and shall suffer death or other punish

ment.

Hale says (Pleas of the Crown) that if an alien enemy come into

§ 27. Notwithstanding the criminal character of a spy, it has not unfrequently happened that men of high and honourable feelings have been induced to undertake the office; and although this fact has somewhat lessened, in popular opinion, the odium of the act, it has failed to diminish the severity of its punishment. Two of the most notable instances of this kind to be found in military history, occurred during the war of the American Revolution. After the retreat of Washington from Long Island, Captain Nathan Hale recrossed to that island, entered the British lines in disguise, and obtained the best possible intelligence of the enemy's forces, and their intended operations; but, in his attempt to return, he was apprehended, and brought before Sir William Howe, who gave immediate orders for his execution as a spy; and these orders were carried into execution the very next morning, under circumstances of unnecessary rigour, the prisoner not being allowed to see a clergyman, nor even the use of a Bible, although he respectfully asked for both. Every one remembers the story of Major André, how he ascended the Hudson river, within the American lines, where he bargained with Arnold for the surrender of West Point and its defences; how he was captured in his attempt to return to New York in disguise, and with the documentary evidence of his bribery of Arnold concealed upon his person; and how, after a full examination, and due deliberation, he was condemned, and ordered by Washington to be executed as a spy. These two officers,-Hale and André,―were nearly of equal rank and age; both had talents and accomplishments which gave promise of future greatness, and which had already endeared them to large circles of admiring friends. They both committed the same military offence, and both suffered the same punishment, but with this difference,' that while the British did everything in their this kingdom hostilely to invade it, if he be taken he shall be dealt with as an enemy, but not as a traitor, because he violated no trust or allegiance.'

So adjudged in Lord Herise's case. Also, in 1695, a court-martial was authorised to try Tobias le Roy, alias Boerke, 'lately come out of France with a commission from the French king, whose subject he owns himself to be, so that he might be justly deemed to be a spy, and to have treacherous designs against our person and Government,' and if guilty to punish him by death, or otherwise, according to the military law of nations.

1 There seems to have been a greater difference between these two cases, than indicated above.

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