: The Case of Edith Cavell A Study of the Rights of Non-Combatants by Beck James M James Montgomery - Cavell Edith 1865-1915 World War I

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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 , 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."

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" .

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 "zuf?hrt" refers to a personal guidance.

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