THE SPY AND THE LAW
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 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 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 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 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 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 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 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 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, 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 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 to an invader, but they do owe
him the duty of remaining quiet and abstaining from acts which might
endanger his safety or success. They are subject to his martial law
regulations, and, under certain circumstances, they may be guilty of
war treason. War treason has been defined by the Germans as:--
"The act of damaging or imperilling the enemy's power by deceit,
or by the transmission of messages to the national army on the
subject of the position, movements, plans, etc., of the occupant,
irrespective of whether the means by which the sender has come into
the possession of the information be legitimate or illegitimate
(_e.g._, by espionage)."
It is, of course, regarded as an act of perfidy when a person whose
rights as a non-combatant have been regarded abuses his position to
render aid to the national army. Non-combatants, save when the "levy in
mass" has been put in force, have no right, it is considered, to meddle
in any way with the operations of the contending armies.
Bearers of despatches, whether military or civilian, are not spies so
long as they work openly. During the Franco-Prussian War, Bismarck
contended that all who attempted to pass out of Paris by balloon
were spies, and should be treated as such, and though those who were
caught were not put to death, they were very harshly treated. He was,
undoubtedly, wrong under international law as recognised at the present
day.
Since those times, the aeroplane has placed in the hands of military
commanders a powerful weapon, not only of espionage or scouting, but
also of communicating information, and probably not even Bismarck,
were he still alive, could contend that the use of aeroplanes could be
regarded as bringing the airman within the laws of espionage. And there
is no difference in principle between the aeroplane and the balloon.
Obviously, there can be none of the concealment which is necessary to
establish spying.
The invention of wireless telegraphy brought about a curious problem
in espionage during the Russo-Japanese War. A steamer, fitted with
a wireless installation, followed the movements of the rival fleets
in the interests of one of the London papers. She was boarded by a
Russian cruiser, and, as result, the Russian Government informed the
neutral Powers that should any neutral vessel be found within the
Russian maritime zone, having on board correspondents with apparatus
of this kind--which, obviously, was not foreseen in the then existing
Conventions--used for the purpose of transmitting information to the
enemy, the correspondents would be treated as spies, and the vessels
made prizes of war. That position is now untenable.
Owing to the improvements made in wireless telegraphy, a very similar
situation might arise in a land war. It is possible, to-day, to
carry in an ordinary motor-car a wireless outfit capable of sending
messages a very considerable distance; indeed, there is good reason
for believing that such an apparatus is actually being used by German
agents for transmitting information from the east and north-east
districts of England, to enemy submarines lurking in the North Sea.
A rigorous search has been made for this mysterious car, which has
been reported in various districts. Naturally, when the apparatus is
not in use it is concealed within the body of the car, which would
then become, apparently, an ordinary touring vehicle, with nothing to
distinguish it from hundreds of others passing freely along the roads.
In this case there would be little doubt about the fate of the
occupants of the car if they were caught. They would not be "spies" in
the strict sense of the word, as their offence was not committed within
the zone of the operations, but they would be guilty of "war treason,"
and liable to the death penalty.
This is a very real danger, and the offence is one that it would be
extremely difficult to detect. The popular idea of a wireless plant,
gained no doubt from the enormous "aerials" of the high-power stations
sending messages thousands of miles, is that wireless telegraphy is
something that cannot be carried on without employing huge plant that
it would be impossible to conceal.
Now I can claim to know something of wireless telegraphy--I have
experimented for some years--and I can say, at once, that this is an
exceedingly dangerous fallacy. In recent years very great improvements
have been made in both transmitters and receivers, and to-day it is
quite possible to establish in almost any house, a small, but powerful
wireless plant, which would be utterly invisible from outside, but
quite capable of sending messages from any spot near the coast to enemy
vessels, such as submarines, lying a few miles away.
Of secret installations there are, no doubt, to-day, many in various
parts of the country. Several stations have, indeed, been discovered.
The reason aliens were not allowed to possess a telephone was regarded
as curious by some people. But it was because telephone-wires, when
properly insulated and arranged, make quite a good "aerial." Further,
in any barn or long attic, aerial wires can be strung across, and
give excellent results. The spy does not need spidery wires upon
masts high above his house-top, or in his garden. If his instruments
are sufficiently delicate, and are connected with the underground
gas-pipe, or even to an ordinary wire-mattress, he will be able to
receive messages from any of the high-power stations within a radius
of, say, five hundred miles, while from a wire strung inside a
disused factory-chimney, and thereby hidden, a wireless message can
be despatched a couple of hundred miles. Therefore the peril of all
this will at once be realised, for any spy who knows sufficient to fit
up a wireless station inside his own house, and is acquainted with
the latest developments of the science, need not use lamp-signalling
at night, or pigeons, or any other antiquated modes of communication.
Indeed, he can flash at night a code-message direct to Norddeich or
any other place on the German coast, and receive back his answer in a
few moments, no one being able to detect, until after long search and
inquiry, whence the mysterious buzz has emanated.
It ought to be said, however, that it is problematical how long such a
fixed station, established say in Yorkshire, could be worked without
detection, because its messages must--sooner or later--be picked up
by some of our own Post Office or naval operators. The messages would
be in cipher, of course, but the important thing would be to know
that such a plant was being used. An expert wireless-operator, with a
newly-invented instrument called a "direction-finder," can make a very
good guess at the distance of the point of origin of any message he
receives, and once the proper authorities were on the track of a secret
wireless station, the work of hunting it down would be only a matter
of time and trouble. Such a case was reported a few weeks ago from the
Pacific coast, where a wireless station established in the centre of a
remote district was giving the Germans valuable help. It was tracked
down and located, and it is said that a similar station was found
in the centre of Rome, and others in Paris and Antwerp. We might be
equally successful here, but, in the meantime, it is more than likely
that a good deal of damage might have been done.
The case of a wireless installation used for a motor-car, however,
presents much more difficulty of detection. We might know perfectly
well that it was being used, and yet be unable to locate it on account
of its mobility. It is practically certain that it would never be
used twice from the same spot; indeed, it might operate along a line
running a couple of hundred miles north and south, and still convey its
messages to the enemy vessels. In such a case as this, we can only rely
upon vigilance and good luck to turn the trick in our favour.
In my view, the Admiralty took an extremely unwise step when, at the
beginning of the war, they closed all the private wireless stations in
England. There are a great many of these stations--far more than the
general public realises--and the majority of them were being worked
by men whose loyalty and discretion stood absolutely above suspicion.
These installations--free from the heavy load of business thrown upon
the Government coast stations--are quite capable of doing excellent
work in constantly "listening" for illicit stations which might be
in the hands of German spies for the purpose of giving information
respecting our naval movements. The value of these small stations as a
means of detecting hostile messages has been entirely under-estimated
by the Admiralty, who seem to consider the risk of Englishmen being
either traitors or fools more than outweighs the possibility of
detecting secret wireless in the hands of our enemies.
I have dwelt upon this matter at some length, because I am absolutely
convinced of the very serious danger to which we are exposed from the
use of wireless installations, small, but capable of working over any
distance up to, say, one hundred miles--and even less would be amply
sufficient--by German spies in Great Britain at the present moment.
We now know quite enough of German methods to be aware that our enemy's
spies are not only singularly daring, but singularly resourceful.
I know what a small, compact, portable station can do in skilled
hands, and I am strongly of opinion that the risks we are running
in this respect are not sufficiently appreciated--perhaps are not
understood--by the authorities. Even to-day, in spite of the evidence
that I and others have been able to bring forward for some years, and
in spite even of numerous convictions during the past few months, there
is too much of a tendency on the part of the Government to try to "save
its face" by declaring that the spy peril is enormously exaggerated.
No doubt they will endeavour to refute my arguments in these pages.
They declared, for so long, that there were no German spies in England,
that even to-day they are reluctant to take the drastic steps which
the situation urgently demands. On no other supposition can we explain
the unparalleled liberty accorded to thousands of Germans, whether
naturalised or not, who are still permitted to live and move so freely
among us. Some, indeed, have been interned, and afterwards released.
Returning to the legal position of spies (after a digression perhaps
not without its uses), it should be noted that the Hague regulations
distinguish between a member of the armed forces and a private citizen.
The soldier spy who has rejoined the army cannot, afterwards, be
punished for his act of espionage. The civilian who acts as a spy
enjoys, however, no such privilege. He has no business to meddle with
military affairs, and, should he be captured at any time, he is liable
to pay the penalty of his former deeds. Similarly, to harbour a spy is
also a criminal offence.
A person found guilty of espionage may either be hanged or shot;
nowadays, the usual punishment is shooting, though the American code
still prescribes hanging. In earlier times, also, he was liable to be
executed on the spot, without formality of any kind. To-day, he must
first be tried by court-martial in accordance with the established
rules of martial law in the country in which the offence was committed.
The position of civilians in an invaded territory who give or transmit
to their own side information respecting the enemy's movements is not
without interest to us now that threats of a German invasion are so
freely indulged in by the Press of Germany, and preparations to defeat
such an attack are being actively made by our own military authorities.
There can be no doubt that if a resident of an occupied territory gives
such information, he is guilty either of spying, or of a hostile act
against the invader, amounting to war treason, and equally punishable
by death. The "American Instructions" are very emphatic on this point.
They say:--
"If a citizen or subject of a country or place invaded or conquered
gives information to his own Government from which he is separated
by the hostile army or to the army of his Government he is a _war
traitor_ and death is the penalty of his offence."
Thus, a Belgian resident in Brussels, during the German occupation,
found sending information to the Belgian authorities in France, would
be shot out of hand by the Germans, and they would be within their
clear rights in shooting him.
A more doubtful case would be that of an inhabitant of a district not
yet occupied, who entered the war zone, obtained information, and,
having sent it to his Government, returned home, only to be captured
later when the enemy occupied the district. The view is generally held,
though the Convention came to no very clear decision, that in such a
case he could not be punished, as he was not supposed to belong to an
occupied territory. Such a man owes no duty to the enemy, as in the
case of an occupied territory, and once he has completed his mission,
he is free.
It should be noted that the nationality of a spy is not material;
neutrals found guilty may be punished as though they were the
enemy subjects. Many Chinese who spied for the Russians during the
Russo-Japanese War were executed by the Japanese. One of them was a
Chinese officer, and the Government of China demanded an explanation.
The Japanese reply was quite unequivocal, and insisted on the right to
punish spies, no matter of what nationality.
As I have said, all nations spy in the interests of national
self-preservation. It is not the _fact_ of German espionage that has
roused the indignation of the civilised world against her. We have no
feelings even of resentment against such men as Carl Lody, though,
of course, we are entitled to protect ourselves against them. They
owe us nothing, and they are clearly doing their duty in trying to
help their country. What has aroused anti-German feelings--which are
not likely to die out for many years--is the baseness of the German
_method_: systematic "planting" of agents who, for years, have posed
as the friends of those among whom they lived, yet have not hesitated
to betray them in the first shock of war. Thousands of paid German
spies have deliberately become naturalised Frenchmen, Englishmen, and
Belgians, as a mere cloak for their efforts to betray the country of
their adoption. Hundreds of thousands of Germans accepted for years
as friends in this country, bearers even of British honours, have
abused our hospitality, and added the vilest treachery to the blackest
ingratitude. While posing as our friends, they have worked their best
for our undoing, and--worse still--they have suborned and made traitors
of poor men, to whom the lure of gold of this kind is simply that it is
"not cricket," and for the false friend, not for the open enemy, the
British people reserve their bitterest scorn and contempt.