This is true, and all of this true, for it must be borne in mind that it is not every stratagem that is asllowe, but only such as are "without perfidy and consistent with good faith." Was the act of the prisoners without perfidy and consistent with good faith?
The attack by the English on two Spanish frigates asnd their capture in the harbor of Barcelona in 1809 is cited as a case in point, and from it the defense deduce that "it is allowable to go on board an enemy's ship in the guisse of passengers with the intent of rising uponthe officers and capturing them, as an act of war."
It is to be noticed, in the first place, that the very case cited is denounced by Ortlan, who refers to it as of the same character as that of the English frigate off Calais in 1756, described by Vattel as an "unworthy stratagem deserving severe punsihment." But the case is not one in point. the English did not come on board the Spanish vessels in the guise of passengers. Spanish shops of war, in time of war, lying in their won ports, can hardly be presumed to hbe in the way of carrying passengers and of receiving as such a large eneough ships. The English came upon the Spaniards under false colors, and, owing to this and their want of vigilance, they surprised, attacked, and captured them. Theycame on board not as passengers, but as open enemies.
"It is allowable to sail and chase and approach a ship under false colors, but not to fire or attack under them."
The ship that suffers itself to fall in the power of an enemy who thus approaches it must accept the consequences of its want of vigilance and preparations; but this is not the case in point.
Analogy to the case of the prisoners is sought to be found in case of a spy sent out by one commander to go within the lines of another; and it is contended that the office of spy, though an infamous one, punishable by a speedy, distraceful, and violent death, is not against "the rules and usages of civilized war;" much less so, then, the cases of the prisoners; and Halleck, page 406, section 26, is cited to show that "the employment of spies is considered a kind of clandestine practice--a deceit in war allowable by its rules."
But can an act be said to hbe allowed by a code which act that code visits with a vilent and sigraceful death? Certainly not. It vould be an utter confusion of terms to so rule. That which is allowahble by the rules of war in the matter of spies is not the "office of spy," but the employemtn of them. A commander may, without reproach to his character or his being held to an account, employa spy; but the spy engages himself with the full knowledtge that if caught in flagrante delicto he will, by the laws of war, be hung, and that his employer will have no right to make any reclamation or retaliation on his acount. Whatever, therefore, there is of analogy in this case to that of the prisoners is not to their benefit.
Halleck on International Law, pages 401, 402, is correctly cited for the rule applicable to this case. He says:
War makes men public enemies, but it leavses, 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 priniciple, the question arisses: How far we may deceive an enemy and what stratagems are allowable in war? Whenever we have expressedly6 or tacitly engaged to speak truth to an enemy, ti wouold be perfidy in us to deceive his confidence in our soncerity. But if the occasion imposes upon us no moral obligation to disclose to him the truth, we