The Judge.--“Witness, you may be seated.”
M. Labori.--“I add that I shall have some questions to put to the
witness.”
The Judge.--“You will put them now, or not at all.”
M. Labori.--“I call attention to the way in which, twice in succession,
you have refused me the means of maintaining the defence.”
The Judge.--“I repeat to you that you are not the director of the
trial.”
M. Labori.--“I do not direct the trial. The proof of that is that you
forbid me the floor. I have a right to offer motions. I am drawing up a
motion. When the court shall have passed upon it, I will put questions.
You will pass upon it in the fulness of your rights. As for me, I will
appeal by every way that is open to me.”
The Judge.--“You have the right to appeal, but as for me, I will direct
the trial as to me seems proper. You ask the floor on a matter foreign
to the trial. I have refused it to you, and I still refuse it to you.
If you have no questions to put to Major Esterhazy, we shall ask him to
be seated.”
M. Labori.--“I have questions to ask, but I will not ask them until the
court shall have passed upon my motion.”
The Judge.--“The court will pass upon it tomorrow.”
M. Labori.--“The court will pass upon it when it likes, but, as for
me, not another word shall be gotten from me.”
The Judge.--“Witness, take your seat.”
The court then called other witnesses, but none appeared. Thereupon
General de Pellieux asked for the floor.
The Judge.--“Certainly.”
General de Pellieux.--“I have just received the declaration of a person
whose name is on this card. This person was questioned day before
yesterday by M. Atthalin. I ask that he be heard. He has an especially
important declaration to make regarding a money proposition that has
been made to him. He is in the Salle des Pas-Perdus, ready to come up.
His name is M. Bouton. I do not know him.”
The Judge.--“We will hear this witness presently, if there is occasion.”
The court then declared a recess. An hour and a half later the court
came in again, whereupon M. Labori read the following motion:
May it please the court,
Whereas, after the deposition of General de Boisdeffre, M. Labori
asked the floor in order to put several questions to the witness;
Whereas the incident in question was raised spontaneously during
yesterday’s session by General de Pellieux, who invoked, as a
so-called proof against Dreyfus, and consequently as a so-called
decisive defence of Major Esterhazy, two documents without any
appearance of value or authenticity;
Whereas, without having to touch any point concerning the national
defence, the accused have a right to put to the witnesses in a general
way questions relative to their depositions, and of such a nature as
to aid in bringing out the truth;
Whereas the accused cannot be forbidden, without outrageously
violating the rights of defence, to ask questions concerning the
manner in which General de Pellieux was made acquainted with these
documents, the conditions under which they were shown to him, in order
to find out whether they have been examined by experts, etc.;
Whereas it cannot be pretended that General de Pellieux made a
declaration so spontaneous that it was impossible to stop him;
Whereas in fact, General de Boisdeffre, whose deposition had been
announced in advance, has been called to the bar, after a day’s
reflection, with the consent of the court and with full knowledge of
the circumstances, in order to confirm the declaration of General de
Pellieux;
Whereas there is no occasion here to inquire into the value, from the
standpoint of equity and right, of judicial processes which consist in
calling, or allowing to come daily, to the bar generals who testify
free of all control, and without prevention of any sort, concerning
matters which it pleases them to approach, invoking or violating
closed doors or professional secrecy at their convenience;
But whereas in any case, and making, moreover, concerning this matter,
all legal reserves, the accused believe it their duty to establish the
following fact: The judge of the assize court, answering M. Labori,
who asked for the floor in the terms of Article 319 of the code of
criminal examination, and solely to put questions to witnesses;
declared that the floor should not be given to him, and that no
question should be asked either of General de Boisdeffre or of General
de Pellieux;
Whereas the court made this answer before any question had been
formulated;
Whereas M. Labori then asked to be allowed to offer a motion, in order
to establish this refusal, and to make known to the court the reasons
of fact and law by which he intended to obtain the floor immediately
in the interest of the defence;
Whereas the judge refused to let M. Labori offer his motion;
Whereas the judge of the assize court undoubtedly has a right to
direct the trial and to put questions to witnesses, but whereas, that
this right may be exercised in conformity with the law, with equity,
and with good sense, it is indispensable that the judge should at
least inform himself of the questions to be put;
Whereas the refusal of the court, under the general, rigorous, and
absolute conditions in which it was declared, constitutes, from all
points of view, and especially after the depositions of General de
Pellieux and General de Boisdeffre, which are thus left without answer
and with the protection of justice, a manifest violation of the rights
of defence;
Whereas by the deposition of General de Boisdeffre the question of
confidence in the general staff is now laid before the jury, and the
chief of the general staff has indicated that a verdict of acquittal
would be followed by the resignation of the general staff;
Whereas the defence thus finds itself confronted with a really abusive
intervention of military authority in a matter of justice, and whereas
it would be a veritable denial of justice to prevent the accused from
disproving the serious charges made against them at this bar with the
authorization of the court;
Whereas, in consequence of these facts, the judge summoned the next
witness, Major Esterhazy;
Whereas, after having put a question to him upon the refusal of the
defence to put questions itself for the reason that it needed time
to draw up a motion, the judge invited M. Labori to put questions to
Major Esterhazy if he thought it useful to do so, telling him that he
must put them then, or that he would not be allowed to put them later;
Whereas, after this declaration, and in spite of the protests of the
defence, the witness, Major Esterhazy, was sent back to his seat, and
another witness was called;
Whereas it was only because no witness appeared at the bar that the
judge found himself under the necessity of declaring a recess, and
that the defence has had an opportunity of drawing up its motion;
Whereas all these facts have done serious injury to the rights of the
defence, the free exercise of which it is the business of the court to
insure;
For these reasons,
To give the movers the benefit of record of the facts announced as the
reasons for the present motion;
To order that Generals de Pellieux and de Boisdeffre shall be recalled
to the bar, there to be examined on all questions that may be
formulated by the defence and thereafter put by the court;
To declare that the trial shall then go on according to the regular
forms prescribed by law, under all reserves, notably under that of
recalling to the bar Major Esterhazy when there shall be occasion;
And that will be justice.