Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 1, §§ 8, 17; Puffendorf, de Jure Nat. et Gent., lib. 8, cap. 6, § 6; Vattel, Droit des Gens, liv. 3, ch. 10, § 182; Leiber, Political Ethics, b. 7, §§ 24, 25; Wildman, Int. Law, vol. 2, pp. 24, 25; Paley, Moral and Pol. Philosophy, b. 3, pt. 1, ch. 15.)

§ 26. Spies are persons who, in disguise, or under false prètenses, insinuate themselves among the enemy, in order to discover the state of his affairs, to pry into his designs, and then communicate to their employer the information thus obtained. The employment of spies is considered a kind of clandestine practise, a deceit in war, allowable by its rules. "Spies," says Vattel, "are generally condemned to capital punishment, and not unjustly; there being scarcely any other way of preventing the mischief which they may do. For this reason, a man of honor, who would not expose himself to die by the hand of a common executioner, ever declines serving as a spy. He considers it beneath him, as it seldom can be done without some kind of treachery. The sovereign, therefore, cannot lawfully require such a service of subjects, except, perhaps, in some singular case, and that of the last importauce. It remains for him to hold out the temptation of a reward, as an inducement for mercenary souls to engage in the business. If those whom he employs make a voluntary tender of their services, or if they be neither subject to, nor in anywise connected with, the enemy, he may unquestionably take advantage of their exertions, without any violation of justice or honor." No authority can require of a subordinate a treacherous or criminal act in any case, nor can the subordinate be justified in its performance by any orders of his superior. Hence the odium and punishment of the crime must fall upon the spy himself, although it may be doubted whether the employer is entirely free from the moral responsibility of holding out inducements to treachery and crime. That a general may profit by the information of a spy, the same as he may accept the offers of a traitor, there can be no question; but to seduce the one to betray his country, or to induce the other, by promises of reward, to commit an act of treachery, is a very different matter. The term spy is frequently applied to persons sent to reconnoitre an enemy's position, his forces, defenses, etc., but not in disguise, or under false pretenses.

Such, however, are not spies in the sense in which that term is used in military and international law, nor are persons so employed liable to any more rigorous treatment than ordinary prisoners of war. It is the disguise, or false pretense, which constitutes the perfidy, and forms the essential elements of the crime, which, by the laws of war, is punishable with an ignominious death. Article one hundred and one of the rules and articles for the government of the armies of the the United States, provides "that, in time of war, all persons not citizens of, or owing allegiance to, the United States of America, who shall be found lurking, as spies, in or about the fortifications or encampments of the armies of the United States, or any of them, shall suffer death, according to the law and usage of nations, by sentence of a general court martial." (Vattel, Droit des Gens, liv. 3, ch. 10, § 179; Grotius, De Jur. Bel. ac Pac., lib. 3, cap. 4, § 18; U. S. Statutes, Act of April 10th, 1806; Cross, Military Laws, p. 123; Martens, Precis du Droit des Gens, § 274; Rayneval, Inst. du Droit Nat., etc., liv. 3, ch. 4; De Felice, Droit de la Nat., etc., tome 2, lec. 24; Bello, Derecho Internacional, pt. 2, cap. 6, §2; Heffter, Droit International, § 250; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 12; De Cussy, Droit Maritime, liv. 1, tit. 3, § 24.)

§ 27. Notwithstanding the criminal character of a spy, it has not unfrequently happened that men of high and honorable feelings have been induced to undertake the office: and, although this fact has somewhat lessened, in popular opinion, the odium of the act, it has failed to diminish the severity of its punishment. Two of the most notable instances of this kind to be found in military history, occurred during the war of the American revolution. After the retreat of Washington from Long Island, Captain Nathan Hale re-crossed to that island, entered the British lines, in disguise, and obtained the best possible intelligence of the enemy's forces, and their intended operations; but, in his attempt to return, he wus apprehended, and brought before Sir William Howe, who gave immediate orders for his execution as a spy. and these orders were carried into execution the very next morning, under circumstances of unnecessary rigor, the prisoner not being allowed to see a clergyman, nor even the use of a bible, although he respectfully asked for both. Every

one remembers the story of Major André,- how he ascended the Hudson river, within the American lines, where he bargained with Arnold for the surrender of West Point and its defenses; how he was captured in his attempt to return to New York in disguise, and with the documentary evidence of his bribery of Arnold concealed upon his person; and how, after a full examination, and due deliberation, he was condemned, and ordered by Washington to be executed as a spy. These two officers,- Hale and André,- were nearly of equal rank and age; both had talents and accomplishments, which gave promise of future greatness, and which had already endeared them to large circles of admiring friends. They both committed the same military offense, and both suffered the same punishment, but, with this difference, that while the British did everything in their power to add to the ignomy of Hale's exccution, the Americans spared no exertions to lighten the hours of André's captivity, and to show their regret that the stern exigencies of the war required his death. Again, while the Americans unanimously condemned the barbarous treatment which Hale received before his execution, they, with equal unanimity, acknowledged the justice of his sentence. Many of the English, on the contrary, while acknowledging the kind treatment of André by the American officers, and their expressions of sympathy for his fate, not only complained, at the time, that his sentence was unjust, and his execution a "blot " upon the reputation of Washington, but these charges have since been repeated by some of their ablest writers, and especially by Lord Mahon in his "History of England," and by Phillimore in his "Commentaries of International Law." It is not denied that André was within the American lines, in disguise, for the purpose of gaining information of the disposition of our forces, and of closing negotiations with Arnold for their surrender; but, it is contended, that being there with the authority of Arnold, and under a passport from him, he was not legally a spy. André, himself, never attempted so flimsy a defense; he scorned all prevarication, and was condemned on his own confessions. His defenders seem to forget that the passport of a traitor, given for treasonable purposes, could afford no protection. It had no more legal force than

Arnold's agreement to surrender the American defenses; if Washington was bound to recognize this passport, he was equally bound to carry out the entire agreement, by surrendering to the enemy West Point and its garrison! Moreover, even though André had not been a spy, in the strict technical meaning of that term, he, nevertheless, deserved death, for the laws of war impose that punishment upon any one who attempts to seduce the fidelity of an officer by bribery, or to induce a soldier to desert his colors. And this penalty is now prescribed by the statute of the United States. (Phillimore, On Int. Law, vol 3, § 106; Mahon, Hist. of England; Hamilton, Hist. of the Republic, vol. 1; Sargeant, Life of Major Andre; Holmes, Annals.)

§ 28. While all agree that we have no right to require any man to perform the services of a spy, and that if we attempt to tamper with the fidelity of an enemy's officer or soldier, we incur the risk of such punishment as that enemy, under the laws of war, may impose, there is a difference of opinion with regard to our rewarding such acts. Some say that we may purchase treason or desertion, if we merely accept offers which are made to us; while others contend that, if we pay money for the services of a spy, or for the surrender of a fort, or an army, or for traitorous acts which may lead to their capture, we encourage perfidy and treachery nearly as much as though the offer first came from ourselves. Without attempting to decide this question of ethics, we will merely remark that the Romans, in their heroic ages, rejected with indignation every advantage offered by an enemy's subjects. They sent back to the Falsci, bound and fettered, the traitor who had offered to deliver up the King's children; and they refused to make any account of the victory of their Consul over Viriatus, because it had been obtained by means of bribery. In speaking of the lawfulness of such acts, Vattel remarks, that although generals practice them, they are never heard to boast of having done so. (Vattel, Droit des Gens, liv. 3, ch. 10, §§ 180, 182; Pinheiro-Ferreira, Notes sur Vattel, tome 2, n. 73; Bello, Derecho Internacional, pt. 2, cap. 6, § 3; Heffler, Droit International, § 125; Titus Livius, lib. 42, cap. 47; Valerius Maximus, lib. 9, cap. 6; Eutropius, lib. 4, cap. 8.)

§ 29. It sometimes happens in war that intestine divisions prevail among the enemy's forces, and that one party may favor the objects for which we are contending; in such cases we may, withont scruple, hold correspondence with the one faction, and avail ourselves of its assistance to overthrow the other party. We thus promote our own interest and gain the objects of the war, without seducing any one to crime, or even becoming the partakers of treachery. The right to side with a faction in war is broadly different from the pretended right of forcible intervention in time of peace. A third party may side with the one or the other of the conflicting forces, just as he might in a war between separate and independent nations. If he have just cause of war against one of the parties, he may avail himself of the assistance of the other. (Vattel, Droit des Gens, liv. 3, ch. 10, § 181; Kent, Com. on Am. Law, vol. 1, p. 25; Bello, Derecho Internacional, pt. 2, cap. 6, § 3.)