undertook to pass the American lines on his return, furnished with a passport under the name of John Anderson by General Arnold. He was caught, convicted as a spy, and hanged. As he was not seeking information,1 and therefore was not a spy according to Article 29 of the Hague Regulations, a conviction for espionage would not, if such a case occurred to-day, be justified. But it would be possible to convict for war treason, for André was no doubt negotiating treason. Be that as it may, George III. considered André a martyr, and honoured his memory by granting a pension to his mother and a baronetcy to his brother.2 § 161. The usual punishment for spying is hanging Punishor shooting; though less severe punishments are, of ment of Espioncourse, admissible, and are sometimes inflicted. How- age. ever, according to Article 30 of the Hague Regulations a spy may not be punished without trial before a court-martial; and according to Article 31, a spy who is not captured in the act, but rejoins the army to which he belongs, if subsequently captured by the enemy, may not be punished for his previous espionage, but must be treated as a prisoner of war. But Article 31 applies only to spies who belong to the armed forces of the enemy; civilians who act as spies, and are captured later, may be punished. No regard is paid to the status, rank, position, or motive of a spy. He may be a soldier or a civilian, an officer or a private. He may be following instructions of superiors, or acting on his own initiative from patriotic motives. A case of espionage, remarkable on account of the position of the spy, is that of the American Captain Nathan Hale, which occurred in 1776. After the American forces had withdrawn from Long Island, 1 Halleck, loc. cit., p. 598, asserts the contrary. VOL. II. P See Phillimore, iii. § 106; War Captain Hale recrossed under disguise, and obtained This is generally recognised; but it is controversial 3 whether a belligerent acts lawfully who bribes a commander of an enemy fortress into surrender, incites enemy soldiers to desertion, bribes enemy officers for the purpose of getting important information, incites enemy subjects to rise against the legitimate Government, and the like. If the rules of the Law of Nations are formulated, not from doctrines of book-writers, but from what is done by belligerents in practice, it must be asserted that such acts, detestable and immoral as they are, are not considered illegal according to the existing rules of the Law of Nations. 1 The case of Major Jakoga and Captain Oki, which, though reported as a case of espionage, is really a case of war treason, will be discussed below in § 255. 2 The subject is more fully discussed below in § 255. See Vattel, iii. § 180; Heffter, § 125; Taylor, § 490; Martens, ii, § 110 (8); Longuet, § 52; Mérignhac, iii. p. 289. See also below, § 164. * See Land Warfare, § 158; and Spaight, pp. 140-150, who distinguishes between incitement of enemy troops to treason and incitement of the enemy population to revolt; the former he permits, the latter he considers inadmissible. ΧΙ RUSES Grotius, iii. c. 1, §§ 6-18—Bynkershoek, Quaestiones Juris publici, i. c. 1— Vattel, iii. §§ 177-178-Hall, § 187-Lawrence, § 207—Westlake, ii. pp. 79-81-Phillimore, iii. § 94-Halleck, i. pp. 566-571-Taylor, § 488Moore, vii. § 1115-Bluntschli, §§ 565-566-Heffter, § 125-Lueder in Holtzendorff, iv. pp. 457-461-Ullmann, § 176—Bonfils, Nos. 1073-1076— Despagnet, Nos. 526-527-Pradier-Fodéré, vi. Nos. 2759-2761-Rivier, ii. p. 261-Nys, iii. pp. 204-209-Calvo, iv. §§ 2106-2110-Fiore, iii. Nos. 1334-1339-Longuet, §§ 53-56-Mérignhac, iii". pp. 263-266-Pillet, pp. 93-97-Kriegsbrauch, pp. 23-24-Holland, War, Nos. 78-79-Bordwell, pp. 283, 286-Meurer, ii. pp. 151-152-Spaight, pp. 152-156-Land Warfare, $$ 139-154-Brocher in R.I., v. (1873), pp. 325-329. of War. § 163. Ruses of war, or stratagems, are deceit em- Character ployed in the interest of military operations for the of Russ purpose of misleading the enemy. Such deceit is of great importance in war, and, just as belligerents are allowed to employ all methods of obtaining information, so are they-and Article 24 of the Hague Regulations confirms this-allowed to employ all sorts of ruses for the purpose of deceiving the enemy. Very important objects can be attained through ruses of war, such as, for instance, the surrender of a force, or of a fortress, the evacuation of territory held by the enemy, the withdrawal from a siege, the abandonment of an intended attack, and the like. But ruses of war are also employed, and are very often the decisive factor, during battles. Kinds of § 164. Of ruses there are so many kinds that it is Different impossible to enumerate 1 and classify them. But Stratasome instances may be given. It is hardly necessary gems. to mention the laying of ambushes and traps, the masking of military operations (such as marches or the erection of batteries and the like), the feigning of 1 See Land Warfare, § 144, where a great number of legitimate ruses are enumerated. attacks or flights or withdrawals, the carrying out of a surprise, and other stratagems employed every day in war. But it is important to know that, when useful, feigned signals and bugle-calls may be ordered, the watchword of the enemy may be used, deceitful intelligence may be disseminated,1 the signals and the buglecalls of the enemy may be mimicked 2 to mislead his forces. Even such detestable acts as bribery of enemy commanders and officials in high position, and secret seduction of enemy soldiers to desertion, and of enemy subjects to insurrection, are frequently committed, although many writers protest. As regards the use of the national flag, the military ensigns, and the uniforms of the enemy, theory and practice are unanimous in prohibiting such use during actual attack and defence, since the principle is considered inviolable that during actual fighting belligerent forces ought to be certain who is friend and who is foe. But many publicists maintain that, until the actual fighting begins, belligerent forces may, by way of stratagem, make use of these things. Article 23(f) of the Hague Regulations does not prohibit their use without qualification, but only their improper use, thus leaving the question open, what uses are proper and what are not. Those who have hitherto taught the admissibility of the use of these symbols outside actual fighting can correctly maintain that this article does not prohibit it.R 4 5 1 See the examples quoted by Pradier-Fodéré, vi. No. 2761. 2 See Pradier-Fodéré, vi. No. 2760. The point has been discussed above in § 162. See, for instance, Hall, § 187; Bluntschli, § 565; Taylor, § 488; Calvo, iv. No. 2106; Pillet, p. 95; Longuet, § 54. But the number of publicists who consider it illegal to make use of the enemy flag, ensigns, and uniforms, even before an actual attack, was before the World War becoming larger; see, for instance, Lueder in Holtzendorf, iv. p. 458; Mérignhac, iii. p. 264; PradierFodéré, vi. No. 2760; Bonfils, No. 1074; Kriegsbrauch, p. 24; Spaight, pp. 104-110. As regards the use of the enemy flag by men-of-war, see below, § 211. See Land Warfare, § 152. • When members of armed forces wear the uniforms of prisoners or of contradis Perfidy. § 165. Stratagems must be carefully distinguished Stratafrom perfidy, since the former are allowed, whereas gems in the latter is prohibited. Halleck1 correctly formulates tinction to the distinction, by laying down the principle that, whenever a belligerent has expressly or tacitly engaged, and is therefore bound by a moral obligation, to speak the truth to an enemy, it is perfidy to betray his confidence, because it constitutes a breach of good faith.2 Thus a flag of truce, or the cross of the Geneva Convention, must never be used for a stratagem; capitulations must be carried out to the letter; the feigning of surrender to lure the enemy into a trap, the assassination of enemy commanders, soldiers or heads of States, are treacherous acts. On the other hand, stratagem may be met by stratagem, and a belligerent cannot complain of the enemy who so deceives him. If, for instance, a spy of the enemy is bribed to give deceitful intelligence to his employer, or if an officer, who is approached by the enemy and offered a bribe, accepts it feigningly but deceives the briber and leads him to disaster, no perfidy is committed. the enemy dead, not for deceit but through shortage of clothing-and they always will if necessary-such distinct alterations in the uniform ought to be made as will make it apparent to which side the soldiers concerned belong (see Land Warfare, § 154). Moreover, if soldiers are, through lack of clothing, obliged to wear civilian greatcoats, hats, and the like, care must be taken that they wear a fixed distinctive emblem which marks them as soldiers, since otherwise they lose the privileges of members of armed forees. (See 1 i. p. 566. See Land Warfare, §§ 139-142, 146-150. |