Read Ebook: The Case of Edith Cavell A Study of the Rights of Non-Combatants by Beck James M James Montgomery

Font size: 10 px 15 px 20 px 25 px 30 px 35 px

Background color: BlackWhiteGrayLight GrayDark GrayDim Gray

Text color: BlackWhiteGrayLight GrayDark GrayDim Gray

Apply/Save settings

Ebook has 73 lines and 9621 words, and 2 pages

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.

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 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."

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:

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 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 illustrates 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.

Assuming that Miss Cavell's offense could be regarded in any sense as treasonable, it certainly constituted 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 passed 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 Saturday afternoon, and he at once communicated with the Political Department of the German Military Government, and was expressly assured

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

The Director of the Political Department gave a further

Notwithstanding this direct promise and further "repeated inquiries in the course of the day," no further word reached our Legation, and at 6.20 p.m. it again inquired as to Miss Cavell's fate, and the Director of the Political Department again

Accordingly the Secretary of the American Legation proceeded at once to Baron von der Lancken, and again asked as a favor to this Government that clemency be extended. He brought with him a letter from the American Minister, which reads as follows:

"My dear Baron:

"I am too ill to put my request before you in person, but once more I appeal to the generosity of your heart. Stand by and save from death this unfortunate woman. Have pity on her. Your devoted servant, "BRAND WHITLOCK."

Accompanying this purely personal note were two substantially similar communications, the one directed to Baron von Bissing and the other to Baron von der Lancken. These communications run as follows:

"I have just heard that Miss Cavell, a British subject, and consequently under the protection of my Legation, was this morning condemned to death by court-martial.

"If my information is correct, the sentence in the present case is more severe than all the others that have been passed in similar cases which have been tried by the same Court, and, without going into the reasons for such a drastic sentence, I feel that I have the right to appeal to your Excellency's feelings of humanity and generosity in Miss Cavell's favour, and to ask that the death penalty passed on Miss Cavell may be commuted and that this unfortunate woman shall not be executed.

"Miss Cavell is the head of the Brussels Surgical Institute. She has spent her life in alleviating the sufferings of others, and her school has turned out many nurses who have watched at the bedside of the sick all the world over, in Germany as in Belgium. At the beginning of the war Miss Cavell bestowed her care as freely on the German soldiers as on others. Even in default of all other reasons, her career as a servant of humanity is such as to inspire the greatest sympathy and to call for pardon. If the information in my possession is correct, Miss Cavell, far from shielding herself, has, with commendable straightforwardness, admitted the truth of all the charges against her, and it is the very information which she herself has furnished, and which she alone was in a position to furnish, which has aggravated the severity of the sentence passed on her.

"It is then with confidence, and in the hope of its favourable reception, that I have the honour to present to your Excellency my request for pardon on Miss Cavell's behalf."

This note was read aloud to Baron von der Lancken, the very official who had refused to answer the first communication of the Legation with reference to the matter, and he

"expressed disbelief in the report that sentence had actually been passed and manifested some surprise that we should give credence to any report not emanating from official sources. He was quite insistent in knowing the exact source of our information, but this I did not feel at liberty to communicate to him."

Baron von der Lancken proceeded to express his belief "that it was quite improbable that sentence had been pronounced," and that in any event no execution would follow. After some hesitation he telephoned to the Presiding Judge of the Court-Martial and then reported that the embassy's unofficial information was only too true.

His attention was further called to the express promise of the German Director of the Political Department to inform the American Legation of the sentence, and he was asked to grant the American Government the courtesy of a "delay in carrying out the sentence."

To this appeal for mercy Baron von der Lancken replied that the Military Governor was the supreme authority and that he "had discretionary power to accept or to refuse acceptance of an appeal for clemency." He thereupon left the representative of the American Legation and apparently called upon von Bissing, and after half an hour he returned with the statement that not only would von Bissing decline to revoke the sentence of death, but "that in view of the circumstances of this case, he must decline to accept your plea for clemency or any representation in regard to the matter."

Thereupon Baron von der Lancken insisted that Mr. Brand Whitlock's representative should take back the formal appeal for clemency addressed both to him and to von Bissing, and as both German officials had been fully advised as to the nature of the plea, Mr. Gibson finally consented. Baron von der Lancken assured Mr. Gibson that under the circumstances "even the Emperor himself could not intervene," a statement that was very quickly refuted when the Emperor--aroused by the world-wide condemnation of Miss Cavell's execution--did commute the sentences imposed upon six of the seven persons who were condemned to death with Miss Cavell.

During the earnest conversation which took place in this last attempt to save Miss Cavell's life, the American representative took occasion to remind Baron von der Lancken's official associates--although it should not have been necessary--of the great services rendered by the United States, and especially by Mr. Brand Whitlock, in the earlier period of the German occupation, and this was urged as a reason why as a matter of courtesy to the United States Government some more courteous consideration should be accorded to its request. At the outbreak of the war, thousands of German residents in Belgium returned to their country in such haste that they left their families behind them. Mr. Whitlock gathered these women and children--numbering, it is said, over 10,000--and provided them with the necessaries of life, and ultimately with safe transportation into Germany, and having thus placed this inestimable service to thousands of German civilians in one scale, the American representative simply asked, as "the only request" made by the United States upon grounds of reciprocal generosity, that some clemency should be given to Miss Cavell. The refusal to give this clemency or even to accept in a formal way the plea for clemency, is one of the blackest cases of ingratitude in the history of diplomacy.

No specification of any inaccuracy is however made, except the general denial "that the German authorities with empty promises put off the American Minister" and also the equally general statement that no promise was given to our embassy to advise it of developments in the case.

Does Herr Conrad deny this?

The Brussels "semi-official" statement has the hardihood to state to the world that the American Minister had admitted that "no such promise or assurance was given," and it places the responsibility upon M. Deleval, the Belgian legal counselor of the American Embassy. But this impudent lie is speedily overthrown by the positive statement of our Minister at Belgium to our Ambassador in London as follows:

"From the date we first learned of Miss Cavell's imprisonment we made frequent inquiries of the German authorities and reminded them of their promise that we should be fully informed as to developments. They were under no misapprehension as to our interest in the matter."

When the world recalls how Austrian Ambassadors in Paris, London, and Petrograd made the most emphatic statements that the forthcoming ultimatum to Serbia would be "pacific and conciliatory," and assured the Russian Ambassador that he could therefore safely leave Vienna on his vacation on the very eve of the ultimatum, and when the German Ambassadors in the same capitals gave the most solemn and unequivocal assurances that

"the German Government had no knowledge of the text of the Austrian note before it was handed in and had not exercised any influence on its contents,"

and later admitted, when the lie had served its purpose by lulling the world into a sense of false security, that it had been fully consulted by its ally before the ultimatum was prepared and had given it carte blanche to proceed, when these notable examples of Prussian Machiavellism are recalled, little attention will be given to these futile attempts to wash from the shield of German honor the blood of Edith Cavell.

One can to some extent understand the Berserker fury which caused von Bissing to say in effect to this gentle-faced English nurse, "You are in our way. You menace our security. You must die, as countless thousands have already died, to secure the results of our seizure of Belgium"; but can we understand or in any way palliate the attempt to hide the stains of blood on that prison floor of Brussels with a cobweb of self-evident falsehoods?

Share on: WhatsApp @Hash Facebook Tweet