There is a law of limitation which applies to the punishment of military offences, resembling in a measure that which applies to offences at the civil law. The criminality of some military offences ceases with the completion of the act and the return of the perpetrator to the jurisdiction of the opposing belligerent, while others are punishable at any and all times, at least so long as the war continues. To the latter class belong those offences which are assimilated to capital crimes at the civil law, such as military murders and assassinations, poisonings, inhuman treatment of prisoners, acts of military perfidy. For example, the taking of life by guerrilla bands or other unauthorized belligerents, is a military murder, which is as subversive of civilized society as a murder in time of peace. Hence the crime is considered to adhere to the actor, and the penalty continues to attach. On the other hand, the act of spying is an offence only under the laws and usages of war; it is no crime against society in time of peace. Hence a successful spy, safely returned to his own army, and afterwards captured as an enemy, is not subject to punishment for his acts as a spy; he is entitled to be treated as a prisoner of war, but he may be subjected to restraint and held in close custody as a person individually dangerous. On this subject Saalfeld remarks: "The spy himself, except a subject who serves as a spy against his own sovereign, is not guilty of any crime in the sense that term is used in the law of nations, and although military usages (Raison de guerre) universally permit the execution of a spy, nevertheless their procedure is not to be considered as a punishment, but simply as a means of prevention (or of deterring persons from the commission of the act of spying); this also serves as a reason why he who has ceased to be a spy cannot be executed. The severe treatment of the spy is permitted by the international law only against him who is caught in the act; but if the spy has committed, at the same time, a crime at international law, he may at any time be punished for this particular crime." Other authors and local statutes, although less definite and positive in their language, speak of the punishment of a spy when "caught," or "apprehended" as a spy, that is, in the commission of the act of spying. The statute of the United States of April 10th, 1806, says, "when found lurking as spies," &c. We know of no authority for considering this as a crime at penal law which adheres to the perpetrator after he has escaped within the lines of his own army, that is, beyond the military jurisdiction of the offended belligerent, and beyond his power of punishment. There are numerous instances in modern history confirmatory of this view of the laws of war, that is, cases of spies who have escaped when committing the act, and on being afterward captured, have been treated, by the offended and capturing belligerent, as ordinary prisoners of war. In this, as in many other cases, usage has

established principles which have not heretofore been formally announced by writers on public law.-Saalfeld, "Manual of the Positive Law of Nations," Ed. 1833, p. 206; "Regulations of the Armies of the United States, in the Field," § 104; Napier, "Peninsular War," Brussels ed., 1839, vol ii., p. 628.

The case of Spencer Kellogg, who was executed by the rebel authorities of Richmond, is one in point. He was charged with having been a spy within the rebel lines in the winter of 1861 and 1862. This was not denied. But he escaped to our service without detection, and a year or two afterwards was captured in battle as a prisoner of war. He was nevertheless tried and condemned for his previous act as a spy. Our government demanded that he should receive the treatment of a prisoner of war, as he could not then be lawfully punished as a spy. He was nevertheless executed, and the enemy afterwards alleged that he was also tried and condemned as a deserter. Whether he was so tried and found guilty is not known. It is believed, however, that he was entirely innocent of the latter charge, and if he was executed as a deserter it was an act of murder on the part of the enemy.

The case of Major André has excited more interest and elicited more discussion than any other in the history of military espionage, and an examination of these discussions will afford much information on many questions connected with this branch of military jurisprudence. The facts and circumstances of the case are fully stated in Sargeant's "Life of André.”

After a long correspondence with Arnold, under the direction of General Clinton, the names of both parties being assumed, Major André agreed upon a meeting with the former for the purpose of arranging terms for the surrender of West Point and its dependencies, and the sum which was to be paid to Arnold for his treason; and on the 20th of September he repaired on board the British vessel, the Vulture, then lying in the Hudson river below Haverstraw. On the night of the 21st of September a boat came to the Vulture with the following passes:

"HEAD-QUARTERS, ROBINSON HOUSE, September 20, 1780. "Permission is given to Joshua Smith, Esquire, a gentleman, Mr. John Anderson, who is with him, and his two servants, to pass and repass the guards near King's Ferry at all times. B. ARNOLD, M. Gen'l"

"HEAD-QUARTERS, ROBINSON HOUSE, September 21, 1780. "Permission is given to Joshua Smith, Esq., to go to Dobb's Ferry with three Men and a Boy with a Flag to carry some Letters of a private Nature for Gentlemen in New York and to return immediately. B. ARNOLD, M. Gen'l."

"N. B. He has permission to go at such hours and times as the tide and his business suits. B. A."

John Anderson was the name under which André had carried on his correspondence with Arnold, and under which he now acted and was introduced to Smith. He still, however,

wore his uniform of a British officer, but on entering the boat to go ashore he put on a large blue surtout or watch-coat, which concealed his uniform, and in this disguise he met Arnold and passed our line of sentinels. After passing within our lines he, at the suggestion of Arnold, exchanged his uniform for the dress of a citizen. Having arranged with Arnold the details of the surrender of his post and command, and the sum to be paid for his treason, André started on his return to the British lines, under his assumed name, and disguised in his citizen's dress, with the following pass in his hands, and the treasonable papers which he had procured from Arnold concealed in his stockings: "HEAD-QUARTERS, ROBINSON HOUSE, Sep'r 22d, 1780. "Permit Mr. John Anderson to pass the guards to the White Plains, or below, if he chuses. He being on Public Business by my Direction.

"B. ARNOLD, M. Gen'l."

But before reaching the enemy's lines he was arrested by our militia pickets, and after trial and condemnation was, on the 5th of October, by the order of General Washington, executed as a

spy.

These are the main points of the case in its legal bearing; but the popularity of André, and the sympathy on both sides for the accomplished victim of Arnold's selfishness and treason, raised many other questions which will be considered in this discussion.

In the first place André was arrested as a spy, and his case was referred by Washington to a Military Commission or Board of Officers for their opinion. There was no dispute about the facts. The documentary evidence and André's own statements agreed in every essential particular. André denied nothing; and orally, in his letter to Washington, and in his written statement to the court, confessed every thing.

The following is Washington's letter to the Board:

"HEAD-QUARTERS, TAPPAN, Sept. 29th, 1780. "GENTLEMEN: Major André, Adjutant-General to the British army, will be brought before you for your examination. He came within our lines in the night on an interview with Major-General Arnold, and in an assumed character; and was taken within our lines, in a disguised habit, with a pass under a feigned name, and with the enclosed papers concealed upon him. After a careful examination, you will be pleased, as speedily as possible, to report a precise state of his case, together with your opinion of the light in which he ought to be considered, and the punishment that ought to be inflicted. The Judge-Advocate will attend to assist in the examination, who has sundry other papers, relative to this matter, which he will lay before the Board. I have the honor to be, Gentlemen, your most obedient and humble servant, G. WASHINGTON."

On the same evening, the Board submitted all the documents in the case with the following report:

"The Board having considered the letter from his Excellency, General Washington, respecting Major André, Adjutant General to the British army, the confession of Major André, and the papers produced to them, REPORT to His Excellency

the Commander-in-Chief, the following facts, which appear to them concerning Major André.

"First, That he came on shore from the Vulture sloop-ofwar, in the night of the 21st of September, inst., on an interview with General Arnold, in a private and secret manner.

"Secondly, That he changed his dress within our lines, and under a feigned name, and in a disguised habit, passed our works at Stoney and Verplank's Points, the evening of the 22d of September, inst., and was taken the morning of the 23d of September, inst., at Tarry Town, in a disguised habit, being then on his way to New York, and, when taken, he had in his possession several papers which contained intelligence for the

enemy.

"The Board having maturely considered these facts, DO ALSO REPORT to His Excellency General Washington, that Major André, Adjutant General to the British Army, ought to be considered as a Spy from the enemy; and that, agreeable to the law and usage of nations, it is their opinion he ought to suffer death."

The next day Washington approved the Report, as follows: "HEAD-QUARTERS, September 30th, 1780. "The Commander-in-Chief approves of the opinion of the Board of General Officers, respecting Major André, and orders that the execution of Major André take place to-morrow at five o'clock, P. M."

And the proceedings and sentence were announced in the morning General Orders of October 1st. In "after General Orders," it was announced that "the execution of Major André is postponed till to-morrow." And in "Evening Orders," of same date, it was announced, "Major Andre is to be executed to-morrow at twelve o'clock precisely. A battalion of eighty files from each wing to attend the execution."

On the 1st of October, André wrote to Washington, requesting a change in the mode of execution, and that he might not die on a gibbet. It was decided, on consultation, that the request could not be granted, but through motives of compassion no reply was sent, and André supposed, until he approached the place of execution, that he was to be shot.

We will now consider the legal points raised in this case.

The main, if not only point urged by André in his letter to Washington, and in his statement to the Board, was that the imposture was unintentional, as he had Sir Henry Clinton's orders not to go within an enemy's post, or to quit his own dress. The facts are, that finding it too late to finish his business and return to the Vulture that night, he put a surtout coat over his uniform, and rode with Arnold to Smith's house, passing our picket line on the way. On being challenged, he at first hesitated, but afterwards proceeded with Arnold to the place of concealment, where he replaced his uniform with a

citizen's dress. Whatever may have been his previous intentions, and there can be no doubt of the sincerity and truth of his statements, it cannot be disputed that he entered our lines. under an assumed name, his uniform concealed by an overcoat, and afterwards changed for a citizen's dress, and that the object of his visit and disguise was to obtain and convey intelligence to the enemy. These facts made him a military spy.

Superficial writers are sometimes disposed to attach undue importance to a change of dress, forgetting that disguise does not consist in dress alone, and that any false pretence, coupled with other circumstances, may make a man a spy. It mattered not whether André entered our lines in his uniform or with his uniform concealed by his overcoat, or when or where he changed his uniform; the question is, was he within our lines in disguise, either as to name or dress, or under a false pretence as to character or business, and was he captured before he had escaped to his own lines, and within the protection of his own government?

Suppose André had entered our lines under a flag of truce, and in the full uniform of a British officer, with the insignia of his rank displayed, under the pretence of negotiating a cartel, or some other legitimate object of recognized commercia belli; but the evidence proved that this pretence was false, and that his real object, as shown by his acts, was to bribe our officers to treason, or by clandestine and unlawful means, obtain plans of our fortifications, returns of our garrisons, etc., no one can deny that he would have been guilty of the offence of military espionage, because he was guilty of the very thing which constitutes the criminality of the offence-military treachery.

If there was any doubt in regard to the common law of war on this subject at the time, and we think there could have been none whatever, the statute laws of his own country were perfectly decisive of the question. Without referring to other laws, we will merely quote the Act of Parliament of 1749, which provides for "the trial of all spies, and of all persons whatsoever, who shall come and be found in the nature of spies, to bring or deliver any seducing letters or messages from any enemy or rebel, or endeavor to corrupt any captain, officer, or other in the fleet to betray his trust," &c.

It must be presumed, that André was acquainted with this and similar laws of England, and with the practice of his government on this subject, as had been exemplified in the case of Captain Hale and others in that war. Hence, when Colonel Tallmadge, in answer to André's question as to his probable fate, referred him to Hale's case, he manifested the utmost uneasiness, denying the similarity of the cases, but failing to point out any essential dissimilarity.

Again, Sir Henry Clinton and other friends of André at