Chapter 2

"_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.