The Case of Edith Cavell
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James M. Beck >> The Case of Edith Cavell
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 naivete! 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 Buelow on August 22nd announce to the inhabitants of
Liege 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 Bluecher gave
Napoleon the _coup de grace_ 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 Conde. 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. Leon
Theodor, 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: 'delateurs').