There is a vast amount of misconception in the public mind on the subject of spying, and an almost complete ignorance of the law of dealing with spies, military and civil, in time of peace and in time of war. The subject is one which absolutely bristles with anomalies and incongruities. In all times and in all countries, and by the great majority of people, spying has been condemned as something essentially dishonourable—to call a man a spy has always been regarded as one of the deadliest insults. Yet here we have at once the first, and perhaps the most striking, anomaly of the spy business—the men of unblemished personal honour, who, unquestionably, would not descend to any act which, in their views, was even tainted with meanness, have acted as spies. I will mention a few of these cases presently; in the meantime, it will be well to consider what international law has to say on the subject.
Naturally enough, the subject of spying met with a good deal of consideration on the[Pg 117] part of the members of the Hague Convention, and, so far as there can be said to be international law in the matter, it is expressed in the conventional laws of war drawn up by the assemblage. The following Articles of the Convention dealing with the subject may be usefully quoted:—
ARTICLE XXIX.
A person can only be considered a spy when, acting clandestinely, or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent with the intention of communicating it to the hostile party.
Thus, soldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army for the purpose of obtaining information are not considered spies. Similarly, the following are not considered spies: Soldiers and civilians, carrying out their mission openly, entrusted with the delivery of despatches intended either for their own army or for the enemy's army. To this class belong likewise persons sent in balloons for the purpose of carrying despatches, and generally of maintaining communications between the different parts of an army or a territory.
ARTICLE XXX.
A spy taken in the act shall not be punished without previous trial.
ARTICLE XXXI.
A spy who after rejoining the army to which he belongs is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.
A very detailed and lucid exposition of[Pg 118] the law dealing with spies is given in Mr. J.M. Spaight's "War Rights on Land," perhaps the fullest and most authoritative source of information on the work of the Hague Convention in respect to war on land.
Now, in the conduct of war early and accurate information is of supreme importance. One of the best instances of this on record was the capture of Marshal Macmahon's army by the Germans in the Franco-Prussian War of 1870-71. This, of course, was not the work of a spy, but it was the result of information which a spy might very well have obtained.
A Paris paper published a statement indicating that Macmahon's army had changed the direction of its march. This statement was telegraphed to London and appeared in the papers here. It caught the attention of the then German Ambassador, who, realising its value, promptly telegraphed it to Berlin. For Moltke, of course, this was a heaven-sent opportunity of which his military genius made the fullest use. A new movement was at once set on foot, and the result was the surrender of Macmahon with his entire force.
Granting that information of equal value may at any moment be obtained by a clever spy, it is obvious that commanders in the field are not only entitled, but bound to take the most drastic measures to defend themselves against spies. The work of a single spy may wreck a campaign and settle[Pg 119] the fate of a nation, and here we have the real reason why the spy caught in the act is punished with relentless severity. "Kill that spy" is, and should be, the rule of every commander in the field.
Then arises another consideration of equal importance: every commander is entitled and bound to do his utmost to secure the best possible information as to the enemy's forces, their disposition, their size, and, above all, their intentions. It is of even more importance to understand what your enemy intends to do than to know the forces which he has available to carry out his plans. How, then, are we to draw a distinction between perfectly legitimate scouting and reconnaissance work, which can involve no reprobation and no punishment, and the "spying" properly so called, which justifies the infliction of the death penalty?
The answer lies in a couple of words—the spy acts under false pretences, while the soldier or scout acts quite openly; though, of course, concealing himself from observation and detection, he does not adopt any disguise or discard his uniform. The result is, that under no circumstances can a soldier wearing his uniform be treated as a spy. He may dare and do anything; if he is caught his sole punishment is that he is treated as a prisoner of war. So far as the soldier is concerned (the case of the civilian spy will be dealt with presently) disguise is the essence[Pg 120] of spying. This point is clear beyond the possibility of misconception, and the commander who shot a soldier in uniform on the plea that he was acting as a spy would simply be committing a murder.
Usually, a military spy is a soldier who has laid aside his own uniform, and either adopted civilian dress, or clothed himself in the uniform of the enemy, or a neutral, the better to escape detection. For such, there is no mercy; the penalty of detection is death. The reason is obvious: the soldier in disguise is a far more dangerous enemy than the one who openly carries out his hostile acts. In war, as in peace, the enemy in disguise is most dangerous; the false friend is the soldier's as well as the civilian's worst peril.
Here we come to another anomaly: spying in itself is not a criminal act. That is clearly recognised by Article XXXI. of the Hague Convention already quoted. Consequently, unless he is taken in the act the spy is immune; once he has regained his own lines, and discarded his disguise, he is exempt from the consequences of his espionage, even though he were captured and identified ten minutes later.
To constitute "spying" in the strict sense of the word, the offence must be carried out clandestinely, and in the war area. As we all know now, and as I and others pointed out years ago, the United Kingdom for many[Pg 121] years has been flooded with German agents busily engaged in picking up information on naval and military subjects which would be of value to Germany. It is important to recognise that these agents are not "spies" in the strict sense of the word, since the United Kingdom is, happily, not within the war zone. In time of peace they could not be shot. When war began, however, they were guilty of "war treason" and liable to the death penalty. The case of Carl Lody, with which I deal fully elsewhere, is a case in point. Lody was not accused of "spying," but of "war treason." The word "spy," however, is convenient, and no doubt it will continue to be used without undue regard to the technicalities.
It is necessary, I think, to make it clear how eminent soldiers have found it not beneath their dignity and honour to act as spies, even in the face of the general opprobrium which attaches to the spy. In the first place, the obtaining of information is essential to the successful conduct of war. Secondly, it is recognised that no moral guilt attaches to the spy, as is shown by the fact that he can only be punished if he is taken in the act, and as a preventive measure. Thirdly, we must remember that only a very brave man, ready to lay down his life for his country, could bring himself to act as a spy in war time. The spy, let it not be forgotten, is under no illusions; he takes his life in his[Pg 122] hands, and he knows it. If he is caught there is no help for him; his doom is as certain as the rising of the sun. Only a man to whom his life was as nothing if risking it would serve his country's cause, would dare to undertake the perilous work of spying in time of war. Whatever other attributes the spy may possess, and many of them undoubtedly are individuals of a very undesirable kind, the possession of courage must be granted to them.
Naturally, it will be asked why the spy is so generally held in contempt, and, indeed, in abhorrence. That this should be so is, in all probability, due to a certain confusion of ideas between the soldier spy who, risking his life in war, may be playing a truly heroic part, and those miserable secret agents who, in time of peace and without risk, abuse for gold a nation's hospitality with the deliberate intention of working her ruin when war comes, or, still worse, the traitor who is ready to sell the interests of his own country. And it is one of the anomalies of the whole subject that the traitor who is ready to sell his country's interests to a possible enemy should, in time of peace, be punishable only by penal servitude, while the truly brave and often heroic soldier who in time of war risks his life in his country's cause, should meet certain death if he is detected.
Let us assume for a moment that a man of the former class, the day before the war broke[Pg 123] out, had sold to Germany information of some secret upon which the safety of the British Empire depended. There is no such secret, but I assume it for the sake of argument. His maximum punishment would have been penal servitude. Take next the case of a German soldier who, the day after war was declared, crept disguised into our lines and obtained information which might have enabled his commander to capture fifty British soldiers. We should have shot him without delay. Yet will anyone contend that there is anything comparable in the moral turpitude of the two acts? It must not be understood, of course, that I am pleading for clemency for the spy; my plea is for greater severity for the traitor!
We are now faced with another problem. If it is dishonourable to spy—and many eminent authorities, as well as public opinion, generally hold this to be the case—it is unquestionably dishonourable to employ spies. Yet all commanders of all nations employ spies, and if any nation failed to do so, it might as well—as Lord Wolseley said—sheathe its sword for ever. We can take it for granted that, in his many campaigns, Lord Wolseley made the fullest use possible of spies, and yet his personal honour need not be questioned. We certainly cannot say that he was dishonoured by the use of means often regarded as dishonourable.
Moreover, great soldiers themselves have[Pg 124] not hesitated to act as spies. The history of war is full of such cases. Catinat spied in the disguise of a coal-heaver. Montluc disguised himself as a cook. Ashby, in the American Civil War, visited the Federal lines as a horse-doctor, while General Nathaniel Lyon visited the Confederate camp at St. Louis in disguise before he attacked and captured it. Against the personal honour of such men as these no word can be said, and, as Mr. Spaight points out, it is surprising to find a military historian like Sir Henry Hozier declaring that "spies have a dangerous task and not an honourable one."
The truth seems to be that as regards the military spy in time of war, popular opinion stands in need of revision. In the face of the instances quoted, it cannot be fairly said that the military spy is necessarily a man of dishonour. The spy and the revolutionary, in some respects, fall under the same category. If they succeed, well and good; if they fail, they pay the inevitable penalty, and no mercy is shown them. Yet the revolutionary as well as the spy may be a person of blameless honour.
As a matter of fact, the Germans themselves—whose sense of honour no one will regard as being excessively nice—seem to recognise the distinction between the military spy and the wretched agents of espionage, of whom they have made abundant use, who in times of peace, work, and can only work,[Pg 125] by abusing the hospitality of the nation among whom they live, and by tempting men to betray their honour and their country's secrets. The Japanese, too, one of the proudest of nations, and with a code of honour as strict as any in the world, have recognised that there is nothing essentially dishonourable about the military spy. During the war with Russia, Mr. Douglas Story relates, they captured a Russian who was spying disguised as a Chinaman. They shot him, of course, but they afterwards sent into the Russian lines a message in which they hailed the spy as a brave man, and expressed the hope that the Russian army held many others equally brave.
Perhaps the most remarkable spy case on record is that of Major André, which aroused the fiercest indignation during the American War of Independence. André, who was born in London in 1751, joined the British Army in Canada, and became aide-de-camp to General Clinton. Benedict Arnold, an American commandant, had undertaken to surrender to the British forces a fortress on the Hudson River, and André was sent by Clinton to make the necessary arrangements.
On the night of September 20th, 1780, Arnold and André met at a place called Haverstraw, on the Hudson River. Then André changed his uniform for plain clothes, and attempted to pass through the American lines by means of a passport given him by[Pg 126] Arnold in the name of John Anderson. As he was approaching the British lines, however, he was captured by a patrol of the enemy, who handed him over to the American military authorities.
Washington at once convened a board of officers, who found André guilty of espionage, and declared that he ought to be put to death. Curiously enough, André himself did not protest against this sentence; all that he asked was that he should be shot instead of suffering the ignominious death of hanging. This request, however, was refused, and, accordingly, he was hanged on October 2nd, 1780.
The case created an uproar in England. The essence of spying is that the spy shall be caught while seeking information, and André was not thus caught. The Americans contended that so long as he was captured before he had returned to his own lines he was to be regarded as a spy, and, therefore, liable to condemnation. Many people in England, and elsewhere, regarded André as a martyr. George III. granted a pension to his mother, a baronetcy was conferred on his brother, and, in 1821, his remains were allowed to be exhumed, and were brought to England and buried in Westminster Abbey!
It is most important to recognise the distinction between spying, properly so called, and "war treason." The inhabitants of an occupied territory do not owe any allegiance[Pg 127] to an invader, but they do o............