SPIRITS. [WINE AND Sellars.] SPY. In the discussion of this and many other questions of international law, the terms Right, Law, Lawful, and others of the same class, must be under stood in a different sense from their proper technical meaning. What writers on International Law speak of as a Right is very often merely what appears fair, reasonable, or expedient to be done, or to be permitted. It is this reasonableness or expediency alone which is the foundation of those various usages which are recog nised by independent civilized nations in their intercourse one among another, and constitute what is called the Law of Na tions. Thus a person or a power is said to have a right according to the Law of Nations, which means that the usage of civilized nations permits the act, and this is the least objectionable sense in which the word Right is used. But when writers use the word Right merely in the sense of what is expedient, without reference to its being the foundation of a recognised usage, they are confounding the reason or foundation of a usage with the usage itself.
No doubt, we believe, has ever been intimated by any writer of authority on International Law, as to the right of na tions at war with each other to avail themselves of the service of spies iu carry in g on their hostile operations. " Spies, whom it is, without doubt, permitted by the law of nations to employ ; Moses made use of such, and Joshua himself acted in that capacity." This is the ex pression of Grotius in the only passage in which he touches on the subject (Bell. d Pac. iii. 4, 818, par. 3). Vattel says : —" if those whom he (a general) em ploys make a voluntary tender of their services, or if they be neither subject to nor in any wise connected with the enemy, he may unquestionably take ad vantage of their exertions without any violation of justice or honour" (Le Droit des Gens, iii. 10, § 179, in the common English translation as edited by Chitty, 8yo., London, 1834).
But it is generally held that the right can only be exercised under limitations of various kinds.
First, as to the right of the general, or of the sovereign for whom he acts, to com pel any one subject to his authority to serve as a spy. Grains, in the passage to which we have referred, admits that spies when caught are wont to be treated with extreme severity; and he adds, that this is sometimes done justly by those who have a manifestly just cause of war—by others, in the licence which the law of war tolerates (licentia illa quam dat belli jus); a useless distinction, upon which no practical rule can be founded. In fact,
as Grotius himself notices, the custom is, when a spy is caught, to put him to death. Vattel attempts to assign the reason for this severity : " Spies," he says, " are ge nerally condemned to capital punishment, and with great justice, since we have scarcely any other means of guarding against the mischief they may do us.' A man of honour, Vattel proceeds to ob serve, always declines serving as a spy as well as from his reluctance to expose himself to this chance of an ignominious death, as because, moreover, the office cannot be performed without some of treachery : " the sovereign, re, has no right to require such a service of his subjects, unless perhaps in some sin gular case, and that of the highest import ance." Such loose exceptions as that here stated abound in the writers on Interna tional Law, and detract very much from the practical value as well as from the scientific character of their speculations. In ordinary cases, Vattel therefore de cides, the general must be left to procure spies in the best way he can, by tempting mercenary souls by rewards.
Secondly, the employment of spies is conceived to be subject to certain limita tions in respect to the manner of it and the object attempted to be gained by it. • Wemay lawfully endeavour,' says Vat tel, to weaken the enemy by all possible means, provided they do not affect the common safety of human society, as do poison and assassination." Accordingly, the proper business of a spy is merely to obtain intelligence, and such secret emis saries must not be employed to take the lives of any of the enemy, although that, done in another way, is commonly the main immediate object of the war. Yet it might be somewhat difficult to establish a clear distinction between what would be called an act of assassination by a spy, and many of those surprises of an enemy which, so far from being condemned or deemed dishonourable, have usually been admired. But it has been maintained that an officer or soldier cannot be treated as a spy in any circumstances, if he had his antforni on when apprehended. See Martens, Precis du Droit des Gens lifo dernes de l'Europe (traduit de I'Allemand) Paris, 1831, liv. viii., ch. iv., § 274; where references are made to Bruckner, De Explorationibus et Ezploratoribus, Jen., 1700 ; to Hannov. Gel. Anzeigen, 1751, pp. 383 et seq. ; and, in regard to the celebrated case of Andrd in the Ame rican war, to Martens, Erziihlungen merh tefirdiger Ri1To, i. 303, and to Kamptz, Belltriige zum Stoats and nlkerrecht, tom. i., No. 3.