The first day’s proceedings began with the entrance of the presiding
judge, M. Delegorgue, the other members of the court being Councillors
Lault and Bousquet. Attorney-General Van Cassel appeared for the
prosecution, M. Fernand Labori for M. Zola, and M. Albert Clemenceau,
assisted by his brother, M. Georges Clemenceau, for M. Perrenx, the
_gérant_ of “L’Aurore.” The court-room of the assize court of the Seine
was crowded to its utmost capacity; wherefore the judge, on taking his
seat, addressed those present as follows:
“I notify the public that we shall not begin until all are seated. I
likewise warn the public that every sort of manifestation, whether for
or against the accused, is formally forbidden, and that at the first
sign of disorder I shall order the court-room cleared. Please consider
this said once for all, for I shall not repeat it.”
The usual dialogue then ensued between the judge and M. Zola.
“Your name?”
“Emile Zola.”
“Your profession?”
“Man of letters.”
“Your age?”
“Fifty-eight years.”
“Your residence?”
“21 _bis_, Rue de Bruxelles.”
The drawing of the jury was then proceeded with. Three challenges were
used by the prosecution, and seven by the defence, the jurors finally
selected being as follows:
Foreman, Auguste Dutrieux, merchant; Auguste Leblond, roof-builder;
Pierre Emery, merchant; Bernier, molder in copper; Edouard Gressin,
clerk; Bouvier, proprietor; Albert Chevanier, wine merchant; Nigon,
leather-dresser; Charles Fouquet, seedsman; Joseph Moureire,
wire-drawer; Charles Huet, market-gardener; Brunot, linen-draper.
Supplementary jurors: Antoine Jourde, tradesman; Alfred Boucreux,
butcher.
Then began the reading of the documents in the case by the clerk, the
only one of interest being the complaint of Gen. Billot. Referring to
M. Zola’s letter, the complainant declared:
This article contains a series of insults and slanders directed
against two ministers of war, general officers, and army officers
of all grades under their orders. Chiefs and subordinates are above
such outrages, and the opinion of parliament, of the country, and of
the army has already placed them beyond reach of attack. Though the
minister of war does not consider it his duty to lodge a complaint for
the persons above referred to, any more than for the council of war
which rendered the verdict of 1894, the authority of which must remain
intact, we cannot admit any suspicion of the independence of military
justice or any accusation that it rendered on January 11 in obedience
to orders an iniquitous sentence and committed a judicial error in
knowingly acquitting a guilty man. Consequently I have the honor to
lodge a complaint against the _gérant_ of “L’Aurore” and M. Emile Zola
on account of the defamation directed against the first council of war
of the military government of Paris, which at its sessions of January
10 and 11, 1898, declared the acquittal of Major Esterhazy.
After the reading of the documents, Attorney-General Van Cassel took
the floor to make what he described as “a statement of the case,”
speaking as follows:
“The minister of war has taken notice, in his complaint, of the
imputation cast by M. Emile Zola upon the first council of war of
having acquitted Major Esterhazy in obedience to orders. The summons
could not go beyond the terms of the complaint. It is natural that
every complainant should circumscribe the grievances for which he
demands reparation. Otherwise it would be too easy for the accused to
turn the discussion from its proper course, and create a diversion
for the audience, which is the great art in the assize court. A
single question is submitted to you, gentlemen of the jury: _Did the
first council of war act in obedience to orders in acquitting Major
Esterhazy?_ The other imputation contained in M. Zola’s article the
minister of war holds in contempt. Nevertheless the accused assert the
right to discuss all the allegations contained in the article. Their
avowed plan is to make you judges of the legality of the sentence
passed upon Dreyfus. We shall not permit it. I warn them that any
attempt on their part to provoke a sort of indirect revision of the
Dreyfus case would be illegal and futile. No one has a right to
indirectly call in question the thing judged. Our legislation, in its
desire to avoid judicial error, has laid down rules for revision. These
rules were broadened by the law of 1895. This law was passed prior to
the trial of Dreyfus. Why have the accused not availed themselves of
it? Why have they not attempted revision by the legal methods? They
have not done so. They have tried to secure the conviction of a second
officer on account of the crime of which Dreyfus was convicted. They
have failed in their undertaking. Since then no new fact has been
produced; no unknown document of such a nature as to establish the
innocence of the condemned has been revealed to justice. In the absence
of material wherewith to secure a legal revision, they wish--I use the
words of M. Emile Zola--to provoke a revolutionary revision. The court
will not lend itself to this manœuvre. Respect for the thing judged
requires that the discussion be circumscribed to the single matter of
which the minister of war takes notice in his complaint. Therefore no
evidence can be admitted here except such as tends to prove the charges
relating to the pretended iniquity committed in obedience to orders in
1898 by the military judges of Major Esterhazy. Accusations foreign to
this special matter must remain outside of the discussion. I ask, then,
that the accused may not be authorized to attempt proof thereof, either
by documents or by testimony. The charges preferred by them against
the officers, the witnesses, the experts, the members of the council
of war of 1894, which convicted Dreyfus, have no connection with the
defamation of the council of war of 1898.”
To this contention M. Labori made the following reply:
“I am not much astonished, gentlemen, at the difficulties which M.
Zola meets in this affair, and I expect that this incident, which is
the first, will not be the last. We expected that they would offer to
you and impose upon us a restricted discussion. Such was the desire
of the minister of war, and it was his right. It will be ours, at a
certain moment, to ask what could have been the underlying reasons
for the exercise of this right under the circumstances in which the
minister of war has made use of it. However that may be, it was his
right, and I do not deny it. But, gentlemen, I do not believe that the
form of the complaint within which he confines himself involves the
consequences which he has hoped for.”
Reading then all the charges made at the end of M. Zola’s letter, M.
Labori continued:
“You know, gentlemen, what was the reply. It began on the day when,
after five days and five nights of deliberation and uncertainty, the
minister of war preferred this complaint, the bearing of which you now
know, and it continues today in the motions which the attorney-general
now makes in the name of the complainant and in his own name. Do you
think that that is going to strangle the discussion? Absurd! It is as
if one should place himself in the middle of a torrent to prevent it
from flowing. The discussion is open. If they wanted to stifle it,
they need not have prosecuted either Perrenx or Zola. They had the
right to refrain; and, in fact, public opinion, to which, gentlemen,
I shall speak,--public opinion, which is not enlightened, and which,
admirable in generosity and in faith, but blind, most faithfully
supports the ruling powers,--public opinion perhaps would have given
its sanction to such a course. But they have chosen to prosecute M.
Zola. Being accused, he will defend himself. Are they, then, serious
when they say to us today that the three paragraphs cited from this
letter of two thousand lines have nothing to do with the intention
of M. Zola on the one hand, or, on the other, with the article as a
whole and the other charges contained in it? Can the court accept
that? Between the three matters taken notice of by the minister of
war and the sum total of the matters which I have read to the court
there is a connection not only close, but indivisible. In the first
place, gentlemen, Major Esterhazy was prosecuted for the same crime of
treason for which Captain Dreyfus had been prosecuted. The document
of the trial was the _bordereau_; the _bordereau_ concerning which
the first experts testified; the _bordereau_ concerning which, at the
second trial, experts testified again. And it is not strange to read
that the experts of both trials, not being the same, feel no desire
to meet at this bar in contradiction of each other in a discussion
where the light is to be complete. But it is certain that the document
in question, and which was the object of discussion in the Esterhazy
trial and in the Dreyfus trial, is the _bordereau_. The two crimes were
the same. M. Mathieu Dreyfus had denounced Major Esterhazy. If Major
Esterhazy had been condemned, the setting aside of the verdict against
Captain Dreyfus would have followed as a matter of necessity. Major
Esterhazy was acquitted. The question remains open, and we are to deal
with it. The question takes the form of a dilemma. Either we are to
be prevented from offering any proof, and in that case we shall see;
or, on the contrary, we are to be permitted to examine the situation
of Captain Dreyfus as well as that of Major Esterhazy, since both
are closely connected, and it would not be possible for us to prove
here the guilt of Major Esterhazy and his acquittal in obedience to
orders, if we had not the right to prove at the same time the innocence
of Captain Dreyfus. To say nothing of the fact, gentlemen, that the
minister of war, in drawing up his complaint, perhaps not perceiving
this dangerous detail, allowed a little paragraph to slip in, in which
it was said that the second council of war covered the illegality
to which the first had committed itself. Now, gentlemen, how are we
to demonstrate that they have covered an illegality, unless we are
allowed to demonstrate first that an illegality has been committed?
Unless, indeed, they mean--and I confess that that would seem to me a
really curious preliminary to this discussion--to acknowledge that the
illegality has been committed, and that it is recognized in the face of
France and the civilized world. If not, then on this point as on others
we must be permitted the opportunity of proof. You know, gentlemen,
what the authorities say. It is a matter of doctrine and of law that,
outside of the matters set forth in the summons, it is permissible to
prove matters connected with them by close and indivisible ties. I have
shown you that the matters which it is our right to prove are closely
bound up with the other matters of which we likewise offer proof. It
remains only to say a single word in answer to a last objection of
the attorney-general,--the thing judged. The thing judged! What will
be left of it, gentlemen, if we succeed in showing that it has been
irregularly and illegally judged, this thing, in which public opinion
has such faith that it considers as public malefactors those who dream
for a second of doubting it, even though they have declared that they
are ready to furnish the proof? Citizens respect this thing judged.
It is their right and their duty to respect it. But only, I repeat,
because they believe it to have been regularly and legally judged.
Where there is no right, there is no legality, no justice, no thing
judged, Mr. Attorney-General, and let us say no more of exceptions.”
In reinforcement of the position of M. Labori, M. Albert Clemenceau
then addressed the court:
“I wish to speak simply of two points made by the attorney-general. He
has told us that his hands are tied by the minister of war, that he
is unable to broaden the discussion, and that it must take the form
that the minister of war desires. We suspected it, but I believe that
it will be interesting to the jury to know that, if he had desired a
general discussion, the minister of war perhaps would have done as
all French citizens do when they believe themselves injured,--namely,
would have lodged a complaint with the attorney-general. The
attorney-general is supposed to know something about law. He would have
read M. Zola’s article, and it is probable that he would have had us
indicted on grounds much more numerous than those which this complaint
specifically alleges. So much for the first point. The second is
this. The attorney-general, who knows the meaning of words, began his
observations by saying: ‘Gentlemen, I am going to make a statement of
the case’; but he made an argument, and he finished in a way of which
the jury had had no warning, asking the court to limit the discussion
which we desire to carry on at this bar.”
M. Labori then submitted a formal motion that the court authorize the
introduction of evidence on all the matters referred to in M. Zola’s
letter.
Before the court had passed upon this motion, the three experts in
handwriting, Couard, Belhomme, and Varinard, intervened through their
counsel, M. Cabanes, asking that, in view of the fact that they had
prosecuted M. Zola and “L’Aurore” in the police courts, no introduction
of their names into the case now on trial should be permitted.
The Judge.--“The purpose of this motion is to enable the experts,
in case it is granted, to prosecute M. Zola in the assize court for
outrages upon witnesses because of their testimony before the council
of war.”
M. Albert Clemenceau.--“We accept any discussion before the assize
court.”
M. Labori.--“If that is the motive of the intervention of the experts,
I ask the court to suspend judgment on the motion, until that point
in the discussion is reached which concerns the experts and their
testimony. And, if it is a matter of reserving to these gentlemen a
special right, which will end, I imagine, in one facility more for the
production of the explanations that we have to furnish, we can only
congratulate ourselves in so far as we are concerned. I speak in the
name of M. Zola and M. Perrenx.”