The Case of Edith Cavell Part 2

"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 a.s.sist 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 censors.h.i.+p to her a.s.sistants 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 nave 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 inst.i.tute 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 const.i.tuted 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 cla.s.s 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 Emba.s.sy 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 doc.u.ment 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 distinguis.h.i.+ng 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 a.s.surance 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 a.s.surance 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 a.s.sistance 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 zufuhrt").

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 "zufuhrt" 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.

This fact must have impressed the Military Court, for according to the same informant it did not at once agree upon either the verdict of "Guilty" or the judgment of death, and it is stated that the Judges would not have sentenced her to death if the fugitive soldiers, who had crossed into Holland, had not subsequently arrived in England. But it will astound any lawyer to learn that the subsequent escape of these same prisoners from Holland to England could be reasonably regarded as a guidance by Miss Cavell of these soldiers _to England_. In all probability Miss Cavell had little or nothing to do with these soldiers after they left Brussels, but even a.s.suming that she provided the means and gave the directions for their escape across the frontier between Belgium and Holland, that was "the head and front of her offending," and it does not come within the law under which she was sentenced to death.

When she was asked by her Judges as to her reasons for sheltering these fugitives, "she replied that she thought that if she had not done so _they would have been shot by the Germans_ and that therefore she thought she only did her duty to her country in saving their lives."

This fairly states what she did, and perhaps this brave and frank reply caused her death. She gave a temporary shelter to men who were in danger of death, and, as previously stated, in so doing yielded to a humanitarian impulse which all civilized nations have recognized as worthy of the most lenient treatment.

When, therefore, Herr Dr. Albert Zimmermann, speaking for the German Foreign Office, expressed its "surprise" that Miss Cavell's execution should "have caused a sensation," it is well to remind Dr. Zimmermann that to offer a refuge to the fugitive is an impulse of humanity. It is likely that these soldiers were her wounded patients; at all events, they had found a refuge in her hospital. They claimed the protection of her roof and she gave it to them.

In the first act of Walkyrie--which is not overburdened with the atmosphere of morality--even the black-hearted Hunding says to his blood-enemy,

"Heilig ist mein herd; Heilig sei dir mein haus."

(Holy is my hearth!

Holy will be to them my house!)

It must be remembered that all this did not take place in the zone of actual warfare. A spy caught in the lines of armies is summarily dealt with of necessity. But Brussels was miles away from the scene of actual hostilities. Its civil courts were open and a civil administration ruled its affairs of such reputed beneficence and efficiency as to evoke the ungrudging admiration of a distinguished college professor who bears the honored name of George B. McClellan. There was therefore no possible excuse under international law for a court-martial, as this trial plainly was. In the American civil war a similar military commission once sought to hold a similar trial in Indianapolis over civilians accused of treason, but the United States Supreme Court, in the case of ex parte Milligan, sternly repudiated this form of military tyranny.

In that case the Supreme Court said:

"There are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, _the courts are actually closed_, and it is impossible to administer criminal justice according to law, then, _on the theatre of active military operations, where war really prevails_, there is a necessity to furnish a subst.i.tute for the civil authority, thus overthrown, to preserve the safety of the army and society; * * * As necessity creates the rule, so it limits its duration; for, if this government is continued _after_ the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and un.o.bstructed exercise of their jurisdiction. _It is also confined to the locality of actual war._"

All civilized countries, including Germany, have always recognized a difference between high treason, punishable with death, and ordinary treason. The German Strafgesetzbuch thus distinguishes between high treason (hochverrat) and the lesser crime of landesverrat. High treason consists in murdering or attempting to murder a sovereign or Prince of Germany or an attempt by violence to overthrow the Imperial Government or any State thereof. This alone is punishable with death.

While this distinction of the German Civil Code may have no application when military law is being enforced, yet it ill.u.s.trates a distinction, which all humane nations have recognized, between the treason which seeks to overthrow a State by rebellion and lesser offenses against the authority of a State.

a.s.suming that Miss Cavell's offense could be regarded in any sense as treasonable, it certainly const.i.tuted the lesser offense under the distinction above quoted.

The fact is that Miss Cavell was tried, condemned, and executed for her sympathy with the cause of Belgium and her willingness to save her compatriots from suffering and death. Military necessity--ever the tyrant's plea--demanded a victim further to terrorize the subjugated people. They chose Miss Cavell.

Notwithstanding the request of the American Legation in its letter of October 5th that it be advised not only as to the charges, but also as to the sentence imposed upon Miss Cavell, and the express promise of M.

Kirschen to inform it of all developments, it was kept in ignorance of the fact that sentence of death had been pa.s.sed upon her. Minister Whitlock only heard this on October 11th, and he at once addressed a letter to Baron von der Lancken in which, after stating this fact, he appealed "to the sentiment of generosity and humanity in the Governor General in favor of Miss Cavell," with a view to commutation of the death sentence, and at the same time addressed a similar letter to Baron von Bissing, the Military Governor of Belgium, who did not deign to give to the American Government even the cold courtesy of a reply.

On the morning of October 11th our Minister heard--not from the German authorities, but from unofficial sources--that the trial had been completed on the preceding Sat.u.r.day afternoon, and he at once communicated with the Political Department of the German Military Government, and was expressly a.s.sured

"that no sentence had been p.r.o.nounced and that there would probably be a delay of a day or two before a decision was reached."