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Military Espionage*
Published online by Cambridge University Press: 04 May 2017
Extract
Military espionage has been regarded from time immemorial, in all countries and among all nations, as a military offense of great criminality. Its penalty is death by hanging. This is the common law of war. Some nations have by orders, decrees or municipal laws, defined what constitutes this offense and provided for the trial and punishment of the offender. It should be observed, however, that espionage, being an offense at the common law of war, punishable by death in a particular mode, a spy may be executed without any municipal law on the subject, and that municipal laws, in regard to espionage, are binding only upon the state which makes them; they form no part of the international code.
- Type
- Research Article
- Information
- Copyright
- Copyright © American Society of International Law 1911
Footnotes
*
The foregoing was found among General Halleck’s papers at his death, which occurred in Louisville, Kentucky, on January 9, 1872. The article is in the general’s handwriting and was prepared probably in the early part of the year 1864, its preparation being suggested by the numerous cases of espionage that arose in the course of that year. It is worthy of note that the opinion expressed by General Halleck in the case of Spencer Kellogg, that a spy who, after having obtained information in the enemy’s lines, has succeeded in escaping to the belligerent that employed him, is not liable to punishment for that offense if subsequently captured by the enemy, was adopted by the Second Peace Conference at The Hague, and will be found in Article 31 of the “ Regulations respecting the Laws and Customs of War on Land,” which contains the requirement that:
“A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of way, and incurs no responsibility for his previous acts of espionage.” (II Scott, The Hague Peace Conferences of 1899 and 1907, p. 391.)
The paper has value as expressing the views in respect to one of the oldest and most important of the laws of war by the person who, at the date of writing, was best qualified by training and experience to pass upon the interesting and important questions of international law which were presented in the cases under discussion.
References
1 Halleck, , International Law, San Francisco, 1861, ch. xxi, sec. 26, page 406 Google Scholar.
2 Halleck, International Law, ch. xvi, sec. 26, page 406.
3 Life of Major John André, by Winthrop Sargent, Esq., of Boston. The first edition of this valuable and exhaustive work appeared in Boston in 1860; a second edition was published by D. Appleton & Co. after the author’s lamented death in 1871.
4 Sargent’s Life of André, p. 283.
5 Sargent’s Life of Andrí, p. 298.
6 Ibid.
7 Ibid.
8 Sargent’s Life of André, p. 347.
9 Sargent’s Life of André, p. 355.
10 The tribunal before which Major André was brought, with a view to determine whether he had acted as a spy, was called by General Washington a “Board of General Officers,” an entirely proper designation, as a general court-martial, at the date of Major Andre’s trial, was without jurisdiction to try a person for the offense of “being a spy;” the Articles of War of 1776 did not confer jurisdiction upon military courts for the trial of that offense. The tribunal was, in fact, a Military Commission, an advisory tribunal frequently resorted to, during and since the War of the Revolution, for the trial of persons charged with offenses in violation of the laws of war. The term “Military Commission” was first applied to them by General Scott during the War with Mexico, and they were resorted to during the Civil War in a very large number of cases of persons charged with offenses in violation of the laws and usages of war. They have been recognized by Congress as tribunals established for the trial of the offense above indicated, but that branch of the Government has never made their jurisdiction, composition, or procedure the subject of legislative regulation, preferring to leave them to the discretion of the President, as commander-in-chief, and to the generals commanding the military forces in occupied territory in time of war. — G. B. D.
11 Halleck, International Law, ch. xvi, sec. 27, p. 406,
* Notwithstanding the clear and unmistakable terms in which General Halleck states Andre to have been a spy and to have deserved punishment as such (International Law, Chapter XVI, pp. 407-409) Sir Sherston Baker, the English editor of Halleck’s work, incorporates in the text, without indicating that the language is not Halleck’s, statements at variance with the matured views of the distinguished American authority. The following passo ge from the 4th edition, 1908, Volume I, pp. 630-631, is quoted without comment:
“ In 1780, the American General Arnold, commanding the fortress at West Point, carried on negotiations with Sir Henry Clinton to enable the latter to surprise that fortress. Major André was the English agent, and had frequent communication with Arnold, on the beach, without the posts of both armies. One night, being unable to return by a boat, as was his custom, he changed his uniform, which he wore under a surtout, for a common coat, and tried to return on horseback to his own lines, but was taken prisoner. Two foreigners, ignorant of English, and several of the most illiterate American generals, were members of the court-martial. The fact of being accidentally (not for any purpose of espionage) dressed as a citizen, instead of being in uniform, was argued as an aggravation to his crime. Three months elapsed before his execution. When he saw the gallows, instead of the rifle, his firmness forsook him. He only said, ‘I die for the honour of my king and country.’ to which General Green, the American commander who presided, observed, ‘No, you die for your cowardice and like a coward.’ Washington signed his death-warrant with great reluctance. Arnold escaped on board a British man-of-war. The American Government would doubtless have saved André if the British Government would have given up the traitor Arnold. As for André, in the opinion of King George III., his character was untarnished; a pension was settled on his mother, and his brother was created a baronet.” — G. B. D.
* It is impossible to say of an unpublished fragment of manuscript whether it is or is not complete; it can only be said of this writing that the author’s reasoning is complete and that the legal aspects of the case of the unfortunate Major André have been fully discussed. It is possible that it was in the General’s mind to add a concluding word — but this was not done, and the manuscript as published is in precisely the same form in which it left its distinguished author’s hands nearly half a century ago. — G. B. D.