M. Labori.—“I am greatly surprised that General Mercier, like so many others, should constitute himself judge of the question whether it is incumbent upon him to appear before the court. The minister of war may confine his complaint within limits, but he has no right as complainant to pursue the shocking and monstrous course of interposing an obstacle, not juridical, but material to the facts that we wish to establish. General Mercier is a witness of the first importance. Perhaps he will read tomorrow in the newspapers what has occurred at this first hearing, which is given in the presence, not of fifteen hundred persons simply, but of all France. M. Zola declares that in 1894 General Mercier, then minister of war, constituting himself judge in a council of war, did, after the hearing was over, outside of the discussion, without the knowledge of the accused, without examination of the accused upon the matter, and without even submitting it to his counsel, communicate to the council of war a secret document, and a document, for that matter, of no significance. If that is not true, let General Mercier come here tomorrow and say so. If it is true, I have no further use for him.”
The judge then announced that Major Rivals and the court clerk, Vallecalle, had notified him that they would not appear.
M. Labori.—“The complainant is represented here by the attorney-general. We should like him to inform us whether the minister of war has given to all these witnesses, as to General Mercier, an authorization which to them would have been more than an authorization,—that is, an order. If the attorney-general does not know, I would like him to put the question to the minister of war between now and tomorrow, in order to give us an answer.”
M. Zola.—“In short, we should like to know whether these persons have received orders from Billot, or are acting on their own initiative.”
M. Labori.—“Have they been ordered not to come? If so, let it be stated frankly, and the court tomorrow will pass upon our motion, which possibly will ask for a postponement of the case, in order that it may be judged when we are in full possession of the facts.”
M. Albert Clemenceau.—“The president of the republic refused to sign the decree of the minister of justice summoning M. Billot; then M. Billot authorized General Mercier not to appear in the assize court. Knowing the beginning of the story, we are interested in knowing the sequel, and I ask the attorney-general to inform us at the next hearing if the other officers, of a lower grade than that of General Mercier, have likewise been authorized by their superiors not to appear in court. If so, I may be permitted to express my astonishment that there has not been found a person in all this hierarchy to understand that there is one thing which is above the minister of war,—namely, justice. We thought so until today.”
The court then presented the refusals of Colonel Maurel, president of the council of war of 1894, M. Autant, architect, and M. Eichmann, who sat in the first council of war; and the defence, as in the previous cases, insisted upon their appearance.
The Judge.—“A letter from General de Boisdeffre reads as follows: ‘I do not need to tell you that, out of respect to the jury and deference to the court, I would willingly appear, but I have been in no way connected with the Esterhazy case, which was conducted entirely by the military government of Paris. Outside of professional secrecy, therefore, I could furnish no useful information.’”
M. Labori.—“All these witnesses seem to imagine that they constitute a caste apart and independent, and that it is permissible to them to rise above the law, above justice itself, and personally constitute themselves judges of the question whether they are useful or not as witnesses in a trial. Consequently in the case of General de Boisdeffre, as in the other cases, we insist and we protest.”
M. Albert Clemenceau.—“We are a little at sea. In the letters read, some witnesses declare that they will not come because they know certain facts, while others, like M. de Boisdeffre, declare that they will not come because they do not know any facts in this case. We do not know which of these two observations is sound, but it is impossible for both of them to be. It is interesting also to the jurors to know that former cabinet ministers, who are by no means the first comers, MM. Guérin and Trarieux, former keepers of the seals, and M. Raymond Poincaré, former minister of finance, have responded to the summons. It is certain that they would have had nothing to fear, if they had written to the court that they could not come. These former cabinet ministers come; yet among the military officers we cannot get a single witness. I believe it is well for the jurors to remember that.”