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 fact must have impressed the Military Court, for according to the same informant it did not at once agree upon either the verdict of "Guilty" or the judgment of death, and it is stated that the Judges would not have sentenced her to death if the fugitive soldiers, who had crossed into Holland, had not subsequently arrived in England. But it will astound any lawyer to learn that the subsequent escape of these same prisoners from Holland to England could be reasonably regarded as a guidance by Miss Cavell of these soldiers to England. In all probability Miss Cavell had little or nothing to do with these soldiers after they left Brussels, but even assuming that she provided the means and gave the directions for their escape across the frontier between Belgium and Holland, that was "the head and front of her offending," and it does not come within the law under which she was sentenced to death.
When she was asked by her Judges as to her reasons for sheltering these fugitives, "she replied that she thought that if she had not done so they would have been shot by the Germans and that therefore she thought she only did her duty to her country in saving their lives."
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."
(Holy is my hearth!
Holy will be to them my house!)
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:
"There are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; * * * As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."