"This justice uncontrolled, and consequently without guarant

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THE

Case of Edith Cavell.

A Study of the Rights

of Non-Combatants.

BY

JAMES M. BECK,

_Former Assistant Attorney-General of the United States,

and Author of "The Evidence in the Case."_

(_Reprinted from "New York Times."_)

G. P. PUTNAM'S SONS,

NEW YORK AND LONDON.

THE CASE OF EDITH CAVELL.

A Reply to Dr. Albert Zimmermann, Germany's

Under Secretary for Foreign Affairs.

By JAMES M. BECK,

_Former Assistant Attorney-General of the United States, and Author of

"The Dual Alliance v. The Triple Entente," and "The Evidence in the Case."_

_Mr. Beck, who is one of the leaders of the New York Bar, is the author

of the most widely read article written since the war began, entitled:

"The Dual Alliance v. The Triple Entente," which was subsequently

expanded into a book, called "The Evidence in the Case," pronounced by a

distinguished publicist to be "the classic of the war." After its

publication in THE NEW YORK TIMES this article was reprinted in nearly

every language of the civilized nations and over a million copies of it

were published._

* * * * * * *

Those who have regarded the Supreme Court of Civilization--meaning

thereby the moral sentiment of the world--as a mere rhetorical phrase

or an idle illusion should take note how swiftly that court--sitting now

as one of criminal assize--has pronounced sentence upon the murderers of

Edith Cavell. The swift vengeance of the world's opinion has called to

the bar General Baron von Bissing, and in executing him with the

lightning of universal execration has forever degraded him.

Baron von der Lancken may possibly escape general obloquy, for his part

in the crime was no greater than that of Pilate, who sought to wash his

hands of innocent blood; but von Bissing will enjoy "until the last

syllable of recorded time" the unenviable fame of Judge Jeffreys. He,

too, was an able Judge and probably believed that he was executing

justice, but because he did not execute it in mercy, but with a ferocity

that has made his name a synonym for judicial tyranny, the world has

condemned him to lasting infamy, and this notwithstanding the fact that

he was made Chief Justice of the King's Bench, Lord High Chancellor of

England, and a peer of the realm. All these titles are forgotten. Only

that of "Bloody Jeffreys" remains.

Similarly, if his master shall be pleased to honor General Baron von

Bissing with the iron cross for his action in the case of Miss Cavell,

as the Kaiser honored the Captain of the submarine which destroyed the

Lusitania--and what order could be more appropriate in both cases than

the cross, which recalls how another innocent victim of judicial tyranny

was sacrificed?--then even the Order of the Iron Cross will not save von

Bissing from lasting obloquy. I do not question that he acted according

to his lights and shared with Dr. Albert Zimmermann great "surprise"

that the world should make such a sensation about the murder of one

woman. Trajan once said that the possession of absolute power had a

tendency to transform even the most humane man into a wild beast, and

Judge Black in his great argument in the case of _ex parte_ Milligan

recalled the fact that Robespierre in his early life resigned his

commission as Judge rather than pronounce the sentence of death, and

that Caligula passed as a very amiable young man before he assumed the

imperial purple. The story is as old as humanity that the appetite for

blood, or at least the habit of murder, "grows by what it feeds upon."

The murder of Miss Cavell was one of exceptional brutality and

stupidity. It never occurred to her judges that her murder would add an

army corps to the forces of the Allies and that every English soldier

will fight more bravely because of her shining example. So little was

this appreciated either in Brussels or Berlin that the German Foreign

Office, in its official apology for the crime, issued over the signature

of Herr Doctor Albert Zimmermann, Under Secretary of Foreign Affairs,

expresses its surprise

_that the shooting of an Englishwoman and the condemnation of

several women in Brussels for treason have caused a sensation._

What extraordinary moral naïveté! How could they appreciate that after

the firing squad had done its work and the body of the woman had been

given hasty burial the victim's virtues would

"plead like angels, trumpet-tongued, against

The deep damnation of her taking off;

And pity, like a naked new-born babe,

Striding the blast, or Heaven's cherubim, horsed

Upon the sightless couriers of the air,

Shall blow the horrid deed in every eye,

That tears shall drown the wind."

This happened with incredible rapidity, and the Kaiser made haste to

respite the eight other intended victims--two of them being also

women--and the Berlin Foreign Office also issued to the world its

defense of its action.

It began with an expression of "pity that Miss Cavell had to be

executed," but the sincerity of this pity can be measured by the fact

that concurrently with Dr. Zimmermann's official apology there came from

Berlin an "inspired" supplemental explanation, which sought to

depreciate the character and services of the dead nurse by stating "that

she earned a living by nursing, _charging fees within the means of the

wealthy only_."

The world has an abundant refutation of this cruel and cowardly slur

upon the memory of a dead woman, for one who first hazarded her life and

then gave it freely to save the lives of others--for such was the charge

for which she died--is not a woman to restrict her gracious

ministrations of mercy for mercenary motives.

The Kaiser has been swift to see the deadly injury to his cause of this

latest evidence of military tyranny. Not only has he respited Miss

Cavell's alleged accomplices--as if to say with Macbeth, "thou canst not

say I did it"--but it is said that he has summoned von Bissing and von

der Lancken to explain their actions in the matter, but as the Kaiser is

responsible for the invasion of Belgium and has hitherto condoned its

attendant horrors, he can no more absolve himself from some share of

responsibility than could Macbeth disavow his responsibility for the

deeds of his two hirelings.

_The stain of this murder rests upon Prussian militarism and not upon

the German people_, for it should not be forgotten that possibly the

most chivalrous act which has happened since the beginning of the war,

was the erection by a German community, where a detention camp was

maintained, of a statue to the French and English soldiers who had died

in captivity, with the beautiful inscription:

"To our Comrades, who here died for their dear Fatherland."

What could be more chivalrous or present a greater contrast to the

assassination of Miss Cavell?

We are advised by Dr. Zimmermann that Miss Cavell was given a fair trial

and was justly convicted, but as the proceedings of the trial were not

public and as Miss Cavell was denied knowledge in advance of the trial

of the nature of the charges against her, _and as we know little of the

circumstances of her alleged offense except the reports of her judges

and executioners_, the world will be somewhat incredulous as to whether

the trial was as just to the accused as Dr. Zimmermann would have us

believe.

The difficulty with this assurance is that the German conception of what

is a fair trial differs from that which prevails in Anglo-Saxon

countries, just as the German word "Gerechtigkeit" does not convey the

same mental or moral conception as the English word "justice."

"Gerechtigkeit" means little more to the Teutonic mind than the exercise

of the power of the State, and claims no further sanction than its

authority. In England, France, and the United States the idea of justice

is that an individual has certain fundamental and inalienable rights

which even the State cannot override, and none of these fundamental

rights have been more highly valued in the evolution of English liberty

than the rights of a defendant who is charged with crime. Whether guilty

or not guilty, he cannot be arrested without a judicial warrant on proof

of probable cause; he may not be compelled to testify against himself;

he is entitled to a speedy trial and shall be informed in advance

thereof of the exact nature of the accusation; his trial shall be public

and open, and he shall be confronted with the witnesses against him and

have compulsory process for his own defense; in advance of trial he

shall have permission to select his own counsel, and shall have the

opportunity to confer freely with him.

_Most of these fundamental rights were denied to Miss Cavell._

It is difficult to understand why, in view of the policy of terrorism,

which has prevailed in Belgium from the time that the invader first

crossed its frontier, the justice from the standpoint of military law

should be referred to in Herr Zimmermann's defense. In the official

textbook of the General Staff of the German Army the definite policy of

terrorizing a conquered country is proclaimed as a military theory. Its

leading axiom is that

"a war conducted with energy cannot be directed merely against the

combatants of the enemy State and the positions they occupy, _but

it will and must in like manner seek to destroy the total

intellectual and material resources of the latter_. Humanitarian

claims, such as the protection of men and their goods, can only be

taken into consideration in so far as the nature and object of the

war permit. Consequently the argument of war permits every

belligerent State _to have recourse to all means which enable it to

obtain the object of the war_."

Miss Cavell's fate only differs from that of hundreds of Belgium women

and children in that she had the pretense of a trial and presumably had

trespassed against military law, while other victims of the rape of

Belgium were ruthlessly killed in order to effect a speedy subjugation

of the territory. The question of the guilt or innocence of each

individual was a matter of no importance. Hostages were taken and not

for the alleged wrongs of others.

Did not General von Bülow on August 22nd announce to the inhabitants of

Liège that

"_it is with my consent that the General in command has burned down

the place [Andenne] and shot about 100 inhabitants._"

It was the same chivalrous and humane General who posted a proclamation

at Namur on August 25th as follows:

"Before 4 o'clock all Belgian and French soldiers are to be

delivered up as prisoners of war. Citizens who do not obey this

will be condemned to hard labor for life in Germany. At 4 o'clock a

rigorous inspection of all houses will be made. _Every soldier

found will be shot._ * * * _The streets will be held by German

guards, who will hold ten hostages for each street. These hostages

will be shot if there is any trouble in that street._ * * * A crime

against the German Army will compromise the existence of the whole

town of Namur _and every one in it_."

Did not Field Marshal von der Goltz issue a proclamation in Brussels, on

October 5th, stating that, if any individual disturbed the telegraphic

or railway communications, all the inhabitants would be "_punished

without pity, the innocent suffering with the guilty_"?

Individual guilt being thus a matter of minor importance, Dr. Zimmermann

had no occasion on the accepted theory of Prussian militarism to justify

the secret trial and midnight execution of Edith Cavell. Indeed, he

freely intimates that his Government will not spare women, no matter how

high and noble the motive may have been which inspires any infraction of

military law, and to this sweeping statement he makes but one exception,

namely, that women "in a delicate condition may not be executed." But

why the exception? If it be permitted to destroy one life for the

welfare of the military administration of Belgium, why stop at two? If

the innocent living are to be sacrificed, why spare the unborn? The

exception itself shows that the rigor of military law must have some

limitation, and that its iron rigor must be softened by a discretion

dictated by such considerations of chivalry and magnanimity as have

hitherto been observed by all civilized nations. If the victim of

yesterday had been an "expectant mother," Dr. Zimmermann suggests that

her judges and executioners would have spared her, but no such exception

can be found in the Prussian military code. "It is not so nominated in

the bond," and the Under Secretary's recognition of one exception, based

upon considerations of humanity and not the letter of the military code,

destroys the whole fabric of his case, _for it clearly shows that there

was a power of discretion which von Bissing could have exercised, if he

had so elected_.

That her case had its claims not only to magnanimity, but even to

military justice, is shown by the haste with which, in the teeth of

every protest, the unfortunate woman was hurried to her end. Sentenced

at 5 o'clock in the afternoon, she was executed nine hours later. Of

what was General Baron von Bissing afraid? She was in his custody. Her

power to help her country--save by dying--was forever at an end. The hot

haste of her execution and the duplicity and secrecy which attended it

betray an unmistakable fear that if her life had been spared until the

world could have known of her death sentence, public opinion would have

prevented this cruel and cowardly deed. The labored apology of Dr.

Zimmermann and the swift action of the Kaiser in pardoning those who

were condemned with Miss Cavell indicate that the Prussian officials

have heard the beating of the wings of those avenging angels of history

who, like the Eumenides of classic mythology, are the avengers of the

innocent and the oppressed.

"_Greatness_," wrote Aeschylus, "_is no defense from utter destruction

when a man insolently spurns the mighty altar of justice_."

This is as true to-day as when it was written more than two thousand

years ago. It is but a classic echo of the old Hebraic moral axiom that

"the Lord God of recompenses shall surely requite."

The most powerful and self-willed ruler of modern times learned this

lesson to his cost. Probably no two instances contributed so powerfully

to the ultimate downfall of Napoleon as his ruthless assassination under

the forms of military law of the Duke d'Enghien and the equally brutal

murder of the German bookseller, Palm. The one aroused the undying

enmity of Russia, and the blood that was shed in the moat of Vincennes

was washed out in the icy waters of the Beresina. The fate of the poor

German bookseller, whom Napoleon caused to be shot because his writing

menaced the security of French occupation, developed as no other event

the dormant spirit of German nationality, and the Nuremberg bookseller,

shot precisely as was Miss Cavell, was finally avenged when Blücher gave

Napoleon the _coup de grâce_ at Waterloo. No one more clearly felt the

invisible presence of his Nemesis than did Napoleon. All his life, and

even in his confinement at St. Helena, he was ceaselessly attempting to

justify to the moral conscience of the world his ruthless assassination

of the last Prince of the house of Condé. The terrible judgment of

history was never better expressed than by Lamartine in the following

language:

"A cold curiosity carries the visitor to the battlefields of

Marengo, Austerlitz, Wagram, Leipsic, Waterloo; he wanders over

them with dry eyes, but one is shown at a corner of the wall near

the foundations of Vincennes, at the bottom of a ditch, a spot

covered with nettles and weeds. He says, 'There it is!' He utters a

cry and carries away with him undying pity for the victim and an

implacable resentment against the assassin. This resentment is

vengeance for the past and a lesson for the future. _Let the

ambitious, whether soldiers, tribunes, or kings, remember that if

they have hirelings to do their will, and flatterers to excuse

them while they reign, there yet comes afterward a human conscience

to judge them and pity to hate them. The murderer has but one hour;

the victim has eternity._"

At the outbreak of the war Miss Cavell was living with her aged mother

in England. Constrained by a noble and imperious sense of duty, she

exchanged the security of her native country for her post of danger in

Brussels. "My duty is there," she said simply.

She reached Brussels in August, 1914, and at once commenced her

humanitarian work. When the German army entered the gates of Brussels,

she called upon Governor von Luttwitz and placed her staff of nurses at

the services of the wounded under whatever flag they had fought. The

services which she and her staff of nurses rendered many a wounded and

dying German should have earned for her the generous consideration of

the invader.

But early in these ministrations of mercy she was obliged by the noblest

of humanitarian motives to antagonize the German invaders. Governor von

Luttwitz demanded of her that all nurses should give formal

undertakings, when treating wounded French or Belgian soldiers, to act

as jailers to their patients, but Miss Cavell answered this unreasonable

demand by simply saying: "We are prepared to do all that we can to help

wounded soldiers to recover, but to be their jailers--never."

On another occasion, when appealing to a German Brigadier-General on

behalf of some homeless women and children, the Prussian martinet--half

pedant and half poltroon--answered her with a quotation from Nietzsche

to the effect that "Pity is a waste of feeling--a moral parasite

injurious to the health." She early felt the cruel and iron will of the

invader, but, nothing daunted, she proceeded in the arduous work,

supervised the work of three hospitals, gave six lectures on nursing a

week and responded to many urgent appeals of individuals who were in

need of immediate relief. "Others she saved, herself she could not

save."

When one of her associates, Miss Mary Boyle O'Reilly, who has recently

contributed a moving account of Miss Cavell's work, was expelled from

Belgium, she begged Miss Cavell to take the opportunity, while it

presented itself, to leave that land of horror, and Miss Cavell, with

characteristic bravery, replied smilingly: "Impossible, my friend, my

duty is here."

It was undoubtedly in connection with this humanitarian work that she

violated the German military law by giving refuge to fugitive French and

Belgian soldiers until such time as they could escape across the

frontier to Holland. For this she suffered the penalty of death, and the

validity of this sentence, even under Prussian military law, I will

discuss later. It is enough to say that no instinct is so natural in

every man and woman, and especially in woman with the maternal instinct

characteristic of her sex, than to give a harbor of refuge to the

helpless. All nations have respected this instinctive feeling as one of

the redeeming traits of human nature and the history of war, at least in

modern times, can be searched in vain for any instance in which anyone,

especially a woman, has been condemned to death for yielding to the

humanitarian impulse of giving temporary refuge to a fugitive soldier.

Such an act is neither espionage nor treason, as those terms have been

ordinarily understood in civilized countries.

It is true, as suggested by a few in America who sought to excuse the

Cavell crime, that Mrs. Surratt was tried, condemned and executed

because she had permitted the band of assassins, whose conspiracy

resulted in the assassination of Lincoln and the attempted murder of

Secretary Seward, to hold their meetings in her house; but the

difference between this conscious participation in the assassination of

the head of the State, in a period of civil war, and the humanitarian

aid which Miss Cavell gave to fugitive soldiers to save them from

capture is manifest. I am assuming that Miss Cavell did give such

protection to her compatriots, for all accessible information supports

this view, and if so, however commendable her motive and heroic her

conduct, she certainly was guilty of an infraction of military law,

which justified some punishment and possibly her forcible detention

during the period of the war.

To regard her execution as an ordinary incident of war is an affront to

civilization, and as it is symptomatic of the Prussian occupation of

Belgium and not a sporadic incident, it acquires a significance which

justifies a full recital of this black chapter of Prussianism. It

illustrates the reign of terror which has existed in Belgium since the

German occupation.

When the German Chancellor made his famous speech in the Reichstag on

August 4th, 1914, and admitted at the bar of the world the crime which

was then being initiated, he said:

"The wrong--I speak openly--that we are committing we will endeavor

to make good as soon as our military goal has been reached."

Within a few weeks the military goal was reached by the seizure of

practically all of Belgium and by the voluntary surrender of Brussels to

the invader, and since then, for a period of fourteen months, the

Belgian people have been subjected to a state of tyranny for which it

would be difficult to find a parallel, unless we turned to the history

of the Netherlands in the Sixteenth Century and recalled its occupation

by the Duke of Alva. It must be said in candor that the Prussian

occupation of Belgium has not yet caused as many victims as the "Bloody

Council" of the Duke of Alva, for the estimated number of

non-combatants, who have been shot in Belgium during the last fourteen

months, is only 6,000 as against the 18,000 whom it is estimated the

Duke of Alva mercilessly put to death.

It may also be the fact that the present oppression of Belgium is marked

by some approach to the forms of law; but it may be doubted whether the

difference is not more in appearance than in reality, for the

administration of law in Belgium has been a mockery. Of this there can

be no more striking or detailed proof than the protest which was

presented to the German authorities on February 17th, 1915, by M. Léon

Théodor, the head of the Brussels bar. The truth of this formal

accusation may be fairly measured by the strong probability that the

brave leader of the Brussels bar would never have ventured to have made

the statements hereinafter referred to to the German Military Governor

unless he was reasonably sure of his facts. What he said on behalf of

the bar of Brussels was said in the shadow of possible death, and if he

had consciously or deliberately maligned the Prussian administration of

justice in this open and specific manner, he assuredly took his life

into his hands. This brave and noble document will forever remain one of

the gravest indictments of German misrule, and as it states, on the

authority of one who was in a position to know, the details of the

savage tyranny which masqueraded under the forms of law, it is appended,

with some condensation, to this article.

After stating the fact "that everything about the German judicial

organisation in Belgium is contrary to the principles of law," and after

showing that Belgian civilians were punished for the violations of law

which had never been proclaimed and of which, therefore, they knew

nothing, the distinguished President of the Order of Advocates says:

"_This absence of certainty is not only the negation of all the

principles of law; it weighs on the mind and on the conscience; it

bewilders one, it seems to be a permanent menace for all, and the

danger is all the more real, because these courts permit neither

public nor defensive procedure, nor do they permit the accused to

receive any communication regarding his case, nor is any right of

defense assured him._

"This is arbitrary injustice; the Judge left to himself, that is,

to his impressions, his prejudices, and his surroundings. This is

abandoning the accused in his distress, to grapple alone with his

all-powerful adversary.

"This justice uncontrolled, and consequently without guarantee,

constitutes for us the most dangerous and oppressive of

illegalities. _We cannot conceive justice as a judicial or moral

possibility without free defense._

"Free defense, that is, light thrown on all the elements of the

suit; public sentiment being heard in the bosom of the judgment

hall, the right to say everything in the most respectful manner,

and also the courage to dare everything, these must be put at the

service of the unfortunate one, of justice and law.

"It is one of the greatest conquests of our history. It is the

keystone of our individual liberty.

"_What are your sources of information?_

"Besides the judges, the men of the Secret Service and the

denouncers (in French: 'délateurs').

"The Secret Service men in civilian clothes, not bearing any

insignia, mixing with the crowds in the street, in the cafés, on

the platforms of street cars, listen to the conversations carried

on around them, ready to grasp any secret, on the watch not only

for acts but for intentions.

"These denouncers of our nation are ever multiplying. _What

confidence can be placed in their declarations, inspired by hate,

spite, or low cupidity?_ Such assistants can bring to the cause of

justice no useful collaboration.

"If we add to this total absence of control and of defense, these

preventive arrests, the long detentions, the searches in the

private domiciles, _we shall have an almost complete idea of the

moral tortures to which our aspirations, our convictions, and our

liberties are subjected at the present time_. * * *

"Will it be said that we are living under martial law: that we are

submitting to the hard necessities of war: that all should give way

before the superior interests of your armies?

"_I can understand martial law for armies in the field. It is the

immediate reply to an aggression against the troops, repression

without words, the summary justice of the commander of the army

responsible for his soldiers._

"_But our armies are far away; we are no longer in the zone of

military operations. Nothing here menaces your troops, the

inhabitants are calm._

"The people have taken up work again. You have bidden them do it.

Each one devotes himself, Magistrates, Judges, officials of the

provinces and cities, the clergy, all are at their post, united in

one outburst of national interest and brotherhood.

"However, this calm does not mean that they have forgotten.

"The Belgian people lived happily in their corner of the earth,

confident in their dream of independence. They saw this dream

dispelled, they saw their country ruined and devastated, its

ancient hospitable soil has been sown with thousands of tombs where

our own sleep; the war has made tears flow which no hand can dry.

_No, the murdered soul of Belgium will never forget._

"But this nation has a profound respect for its duty. It will

always respect it.

"Has not the hour come to consider as closed the period of invasion

and to substitute for the measures of exception the rules of

occupation as defined by international law and the treaty of The

Hague, which sets a limit to the occupying power and imposes

obligations on the country occupied?

"Has not the hour arrived to restore the Court House to the

judiciary corps? The military occupation of the Court House is a

violation of the treaty of The Hague.

"Among the moral forces does one exist that is superior to justice?

Justice dominates them all. _As ancient as humanity itself, eternal

as the need of man and nations to be and to feel protected, it is

the basis of all civilization._ The arts and sciences are its

tributaries. Religious creeds live and prosper in its shadow. Is it

not a religion in itself?

"Belgium raised a magnificent temple to Justice in its capital.

"This temple, which is our pride, has been converted into barracks

for the German soldiers. A small part of it, becoming smaller every

day, is reserved for the courts. The Magistrates and lawyers have

access to it by a small private staircase.

"Sad as are the conditions under which they are called to

administer justice, the Judges have decided, nevertheless, to sit.

The Bar has co-operated with them. Accustomed to live in an

atmosphere of deference and of dignity, they do not recognize

themselves in this sort of guard-room, and, in fact, justice

surrounded with so little respect, is it still justice?"

As this dignified and noble protest did not lead to any amelioration of

the harsh conditions, a month later the same brave jurist, M. Léon

Théodor, appeared in Brussels before the so-called "German Court of

Justice" and, in behalf of the entire Magistracy of Belgium, addressed

to the Prussian Military Judges the following poignantly pathetic and

nobly dignified address, which met with the same reception as the

preceding communication.

The address reads as follows:

"I present myself at the Bar, escorted by the Counsel of the Order,

surrounded by the sympathy and the confidence of all my colleagues

of Brussels, and I might add of all the Bars of the country. The

Bars of Liège, Ghent, Charleroi, Mons, Louvain, Antwerp have sent

to that of Brussels the expression of their professional solidarity

and have declared that they adhere to the resolutions taken by the

Counsel of the Order of Brussels. * * *

"We are not annexed. We are not conquered. We are not even

vanquished. Our army is fighting. Our colors float alongside those

of France, England and Russia. The country subsists. She is simply

unfortunate. More than ever, then, we now owe ourselves to her body

and soul. To defend her rights is also to fight for her.

"We are living hours now as tragic as any country has ever known.

All is destruction and ruin around us. Everywhere we see mourning.

Our army has lost half of its effective force. Its percentage in

dead and wounded will never be obtained by any of the belligerents.

There remains to us only a corner of ground over there by the sea.

The waters of the Yser flow through an immense plain peopled by the

dead. It is called the Belgian Cemetery. There sleep our children

by the thousands. There they are sleeping their last sleep. The

struggle goes on bitterly and without mercy.

"Your sons, Mr. President, are at the front; mine as well. For

months we have been living in anxiety regarding the morrow.

"Why these sacrifices, why this sorrow? _Belgium could have avoided

these disasters, saved her existence, her treasures, and the life

of her children, but she preferred her honor._"

Not long after this second protest, M. Léon Théodor was arrested,

deported to Germany and if now living, is suffering imprisonment for the

offense of defending the oppressed civilian population from a system of

espionage, drumhead courts-martial and secret executions, which in their

malignity should excite the professional jealousy of Danton, Marat and

Robespierre. It was in this manner that the lofty promise of the German

Chancellor that his country would make good the wrong done to Belgium

has been kept.

Such was the condition of affairs in Belgium when Edith Cavell was

arrested on August 5th, 1915.

About the same time some thirty-five other prisoners were similarly

arrested by the military authorities, _two-thirds of whom were women_.

The arrest was evidently a secret one for it is obvious that for a time

Miss Cavell's friends knew nothing of her whereabouts. Even the American

Legation, which had assumed the care of British citizens in Belgium,

apparently knew nothing of Miss Cavell's whereabouts until it learned

after a second inquiry the fact of her arrest and the place of her

imprisonment from the German Civil Governor of Belgium on September

12th, 1915.

As Miss Cavell was a well-known personage in Brussels, it is altogether

unlikely that the fact of her arrest and imprisonment would have been

unknown to the American Legation in Brussels if the fact of her arrest

had been a matter of public information on August 5th or shortly

thereafter. In other words, if the arrest had been an open and notorious

one, it seems to me unlikely that the American Embassy would have been

wholly without information on the subject and when the friends of Miss

Cavell found an opportunity to send some information as to her

disappearance to the British Foreign Office, it seems unlikely that they

would not have given more specific details.

Evidently some information had reached the Foreign Office as to Miss

Cavell's disappearance, for on August 26th Sir Edward Grey requested the

American Ambassador in London to ascertain through the American Legation

in Brussels whether it was true that Miss Cavell had been arrested, and

it seems clear from the diplomatic correspondence that the American

Legation at Brussels knew nothing of the matter until it received this

inquiry from the American Ambassador in London. The fact of her arrest

by the German military authorities must have been known, but the place

of her imprisonment and the nature of the charges against her were

apparently withheld.

This feature of the case and the manner in which Mr. Brand Whitlock, the

American Minister, was prevented from rendering any effective aid to

Miss Cavell, presents one aspect of the tragedy which especially

concerns the honor and dignity of the United States and should receive

its swift and effectual recognition.

Her secret trial and hurried execution was a studied affront to the

American Minister at Brussels, and therefore to the American nation. It

is true that in all he did to save her life he was acting in behalf of

and for the benefit of Great Britain, whose interests the United States

Government has taken over in Belgium; but this cannot affect the fact

that when Brand Whitlock intervened in behalf of the prisoner, sought to

secure her a fair trial, and prevent her execution, and especially when

he asked her life as a favor in return for the services our country had

rendered Germany and German subjects in the earlier days of the war, _he

spoke as an American and as the diplomatic representative of the United

States_.

So secret was Miss Cavell's arrest and so sinister the methods whereby

her end was compassed, that the American Minister in Belgium was obliged

to write on August 31st to Baron von der Lancken, the German Civil

Governor of Belgium, and ask whether it was true that she was under

arrest. _To this the German Military Governor did not even deign to make

a reply, although it was clearly a matter of life and death._

The discourtesy of such silence to a great and friendly nation needs no

comment, and will simply serve to remind the American people that

Germany has never yet replied to another request of the United States

that Germany disavows the massacre of nearly 200 American men, women,

and children on the Lusitania.

Not hearing from Baron von der Lancken, our Minister on September 10th

again wrote to him and again asked for a reply. He asked for the

opportunity "_to take up the defense of Miss Cavell with the least

possible delay_." To this, Baron Lancken deigned to reply by an ex parte

statement that Miss Cavell had admitted

"having concealed in her house various English and French soldiers,

as well as Belgians of military age, all anxious to proceed to the

front. She also acknowledged having supplied these soldiers with

the funds necessary to proceed to the front and having facilitated

their departure from Belgium by finding guides to assist them in

clandestinely crossing the frontier."

The Baron further answered that her defense had been intrusted to an

advocate by the name of Braun, "_who is already in touch with the proper

German authorities_," and added:

"In view of the fact that the Department of the Governor General

_as a matter of principle_ does not allow accused persons to have

any interviews whatever, I much regret my inability to procure for

M. de Leval permission to visit Miss Cavell as long as she is in

solitary confinement."

It will thus be seen and will hereafter appear more fully that in

advance of her trial Miss Cavell was kept in solitary confinement and

was denied any opportunity to confer with counsel in order to prepare

her defense. Her communication with the outside world was wholly cut

off, with the exception of a few letters, which she was permitted to

write under censorship to her assistants in the school for nurses, and

it is probable that in this way the fact of her imprisonment first

became known to her friends.

The fact remains that the desire of the American Minister to have

counsel see her with a view to the selection of such counsel as Miss

Cavell might desire, was refused, and even the counsel whom the German

Military Court permitted to act, was denied any opportunity to see his

client until the trial. The counsel in question was a M. Braun, a

Belgian advocate of recognised standing, but for some reason, which does

not appear, he was unable or declined to act for Miss Cavell and he

secured for her defense another Belgian lawyer, whose name was Kirschen.

According to credible information, Kirschen was a German by birth,

although a naturalized Belgian subject and a member of the Brussels bar,

but it will hereafter appear that the steps which he took to keep the

American Legation--the one possible salvation for Miss Cavell--advised

as to the progress of events, were to say the least peculiar.

Except for the explanations made by the German Civil Governor, we know

very little as to what defense, if any, Miss Cavell made. From one of

the inspired sources comes the statement that she freely admitted her

guilt, and from her last interview with the English clergyman it would

appear that she probably did admit some infraction of military law. But

from another German source we learn the following:

"During the trial in the Senate Chamber the accused, almost without

exception, gave the impression of persons _cleverly simulating

naïve innocence_. It was not a mere coincidence that two-thirds of

the accused were women.

"The Englishwoman, Edith Cavell, who has already been executed,

declared that she had believed as an Englishwoman that she ought to

do her country service _by giving lodgings in her house to soldiers

and recruits who were in peril_. She naturally denied that she had

drawn other people into destruction by inducing them to harbor

refugees when her own institute was overtaxed."

From this meagre information we can only infer that Miss Cavell did

admit that she had sheltered some soldiers and recruits who were in

peril, and while this undoubtedly constituted a grave infraction of

military law, yet it does not present in a locality far removed from the

actual war zone a case either of espionage or high treason, and is of

that class of offenses which have always been punished on the highest

considerations of humanity and chivalry and with great moderation.

The difficulty is that the world is not yet fully informed what defense,

if any, Miss Cavell made, or whether an adequate opportunity was given

her to make any. The whole proceeding savours of the darkness of the

mediaeval Inquisition.

We have already seen that even if Miss Cavell's counsel, M. Kirschen,

endeavored in good faith to make an adequate defense in her behalf, it

was impossible for him to see her in advance of the trial, and M.

Kirschen admitted this when he explained to the legal counsel of the

American Embassy that

"lawyers defending prisoners before a German Military Court were

not allowed to see their clients before trial and were not

permitted to see any document of the prosecution."

It is true that M. Kirschen so far defends the trial accorded to Miss

Cavell as to say

"that the hearing of the trial of such cases is carried out very

carefully and that in his opinion, although it was not possible to

see the client before the trial, in fact the trial itself developed

itself so carefully and so slowly that it was generally possible to

have a fair knowledge of all the facts and to present a good

defense for the prisoner. This would especially be the case of Miss

Cavell, because the trial would be rather long, _as she was

prosecuted with 34 other prisoners_."

This explanation of M. Kirschen is amazing to any lawyer who is familiar

with the defense of men who are charged with a crime. Here was a case

of life and death and the counsel for the defense intimates that he can

adequately defend the prisoner at the bar without being previously

advised as to the nature of the charges or obtaining an opportunity to

confer with his client before the testimony begins.

Still more remarkable is his explanation that as his client was to be

tried with 34 others, the opportunity for a defense would be especially

ample. As the writer had the honor for some years to be a prosecuting

attorney for the United States Government and therefore has some

familiarity with the trial of criminal causes, his opinion may possibly

have some value in suggesting that the complexity of different issues

when tried together, and the difficulty of distinguishing between

various testimony, naturally increases with the simultaneous trial of a

large number of defendants. Where each defendant is tried separately,

the full force of the testimony for or against him can be weighed to

some advantage, but where such evidence is intermingled and confused by

the simultaneous trial of 34 separate issues, it is obvious, with the

fallibility of human memory, that the separate testimony against each

particular defendant cannot be fully weighed.

The trial was apparently a secret one in the sense that it was a closed

and not an open Court. Otherwise how can we account for the poverty of

information as to what actually took place on the trial? The court sat

for two days in the trial of the 35 cases in question, and the American

Legation had been most anxious, in view of the nature of the case and

the urgency of the inquiries, to ascertain something about the trial.

The outside world apparently knew little or nothing of this wholesale

trial of non-combatants, most of them being women, until some days

thereafter, and the only intimation that the American Legation

previously had was a letter of "a few lines" from M. Kirschen, stating

that the trial would take place on October 7th. Notwithstanding the

assurance of M. Kirschen that he would keep the American Legation fully

advised and would even disclose to it in advance of the trial "the exact

charges that were brought against Miss Cavell and the facts concerning

her that would be disclosed at the trial," yet no further information

reached the American Legation from Miss Cavell's counsel, who for some

reason did not advise the American Legation that the trial had commenced

on the 7th and had been concluded on the 8th. The American Legation only

learned the fact of the trial from "an outsider," and it at once

proceeded to look for M. Kirschen. Unfortunately he could not be

located, and thereupon the counsel for the American Legation wrote him

on Sunday, October 10th, and asked him to send his report to the

Legation or to call on the following day.

Having no word from M. Kirschen as late as October 11th (his last

communication with the American Legation being on October 3rd), the

counsel for the Legation twice called at his house and again failed to

find him in or to receive any message from him. It is clear that if M.

Kirschen had advised the American Legation as to the developments of the

trial on October 7th and 8th and had further advised the Legation

promptly as to the conclusion of the trial and its probable outcome,

there is a reasonable possibility that Miss Cavell's life might have

been saved; but for some reason, as to which M. Kirschen certainly owes

an explanation to the civilized world, he failed to keep his positive

promise to keep the American Legation fully advised, and in view of this

fact his assurance to the American Legation "that the Military Court of

Brussels was always perfectly fair, and that there was not the slightest

danger of any miscarriage of justice," must be taken with a very large

"grain of salt."

The significant fact remains that the American Legation never heard that

the trial had taken place until the day after, and then only learned it

from "an outsider." Had the American Legation sent a representative to

the trial, the world would then have a much clearer knowledge upon which

to base its judgment; but when M. Deleval suggested his intention to

attend the trial, as a representative of the Legation, he was advised by

M. Kirschen that such an act "would cause great prejudice to the

prisoner because the German judges would resent it."

What an indictment of the court! Even to see a representative of the

American Government at the trial, in the interests of fair play, would

prejudice the minds of the Judges against the unfortunate woman who was

being tried for a capital offense without any previous opportunity to

confer with counsel. There may be a satisfactory explanation for M.

Kirschen's conduct in the matter, but it has not yet appeared. It

should, however, be added, in fairness to him, that the anonymous

"outsider," from whom the American Legation got its only information as

to the developments of the trial, stated that Kirschen "made a very good

plea for Miss Cavell, using all arguments that could be brought in her

favor before the court."

This does not give the lover of fair play a great deal of comfort, for

if the anonymous informant was not a lawyer, the value to be attached to

his or her estimate of Kirschen's plea must be regarded as doubtful.

The same unknown informant told the American Legation that Miss Cavell

was prosecuted "for having helped English and French soldiers as well as

Belgian young men to cross the frontier and to go over to England." It

is stated on the same anonymous authority that Miss Cavell acknowledged

the assistance thus given and admitted that some of them had "thanked

her in writing when arriving in England."

From the same source the world gets its only information as to the exact

law which Miss Cavell was accused of violating. Paragraph 58 of the

German Military Code inflicts a sentence of death upon

"any person who, with the intention of helping the hostile power,

or of causing harm to the German or allied troops, is guilty of one

of the crimes of paragraph 90 of the German Penal Code,"

and the only pertinent section of paragraph 90, according to the same

informant, is the specific offence of

"guiding soldiers to the enemy" (in German--"Dem Feinde

Mannschaften zuführt").

I affirm with confidence that under this law Miss Cavell was innocent,

and that the true meaning of the law was perverted in order to inflict

the death sentence upon her.

I admit that a general and strained construction of the language above

quoted might be applicable to a defendant who gave refuge to hostile

soldiers in Brussels and thus enabled them to escape across the frontier

into Holland and thence into a belligerent country, but every penal law

must receive a construction that is favorable to the defendant and

agreeable to the dictates of humanity. Every civilized country construes

its penal laws in favour of the liberty of the subject, and no

punishment, especially one of death, is ever imposed unless the offence

charged comes indubitably within a rigid construction of the law.

Keeping in mind this elementary principle, it is obvious that the

offense of guiding soldiers to the enemy refers to the physical act of

guiding a fugitive soldier back into his lines. A soldier becomes

detached from his lines. He finds shelter in a farm house. The farmer,

knowing the roads, secretly guides him back into his lines, and this

obviously is the offence which paragraph 90 had in mind, for the German

word "zuführt" refers to a personal guidance.

Miss Cavell simply gave shelter to soldiers and in some way facilitated

their escape to Holland. Holland is a neutral country, and it was its

duty to intern any fugitive soldiers who might escape from any one of

the belligerent countries. The fact that these soldiers subsequently

reached England is a matter that could not increase or diminish the

essential nature of Miss Cavell's case. She enabled them to get to a

neutral country, and this was not a case of "guiding soldiers to the

enemy," for Holland was not an enemy of Germany.

The Case of Edith Cavell A Study of the Rights of Non-Combatants · 第 1 / 3 段