Distinctly justifiable, if at least Grotius, the father of our
international law, is of any authority. The reasoning of Grotius runs
in this wise. There is a distinction between conventional signs that
are established by the general consent of all the world and those
which are only established by particular societies or by individuals;
deception directed against the former involves the violation of a
mutual obligation, and is therefore unlawful, whereas that against the
latter is lawful, because it involves no such violation. Therefore,
whilst it is wrong to deceive an enemy by words or signs which by
general consent are universally understood in a given sense, it is not
wrong to overcome an enemy by conduct which involves no violation of
a generally recognised and universally binding custom. Under conduct
of the latter type fall such acts as a simulated flight, or the use of
an enemy’s arms, his standards, uniform, or sails. A flight is not an
instituted sign of fear, nor have the arms or colours of a particular
country any universally established meaning.[165]
And in spite of the sound of sophistry that accompanies this reasoning,
the teaching of international law has not substantially swerved on this
point from the direction given to it by Grotius. In Cicero’s opinion,
although both force and fraud were resources most unworthy of rational
humanity, the one pertaining rather to the nature of the lion and the
other to that of the fox, fraud was an expedient deserving of more
hatred than the other.[166] But the teaching of later times has tended
to overlook this distinction. Bynkershoek, that celebrated Dutch jurist
who advocated the use of poison as one of the fair modes of employing
force, declares it to be a matter of perfect indifference whether
stratagem or open force be employed against an enemy, provided perfidy
be absent from the former. And Bluntschli, who is the German publicist
of greatest authority in our own day, expressly includes among the
lawful stratagems of war the use of an enemy’s uniform or flag.[167]
If, then, we test the received military theory by some actual
experience, the following episodes of history must challenge rather our
admiration than our blame, and stand justified by the most advanced
theories of modern international law.
Cimon, the Athenian admiral, having captured some Persian ships, made
his own men step into them and dress themselves in the clothes of the
Persians; and then, when the ships reached Cyprus, and the inhabitants
of that island came out joyfully to welcome their friends, they were of
course more easily defeated by their enemies.[168]
Aristomachus, having taken some Cardian ships, placed his own rowers
in them and towed his own ships behind them, as if they were being
conducted in triumph. When the Cardians came out to greet their
supposed victorious crews, Aristomachus and his men fell upon them and
succeeded in committing great carnage.[169]
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