Dreyfus and the Administration of Law in France

DREYFUS AND THE ADMINISTRATION OF LAW IN FRANCE. BY J. M. TANNER, PRESIDENT AGRICULTURAL COLLEGE, LOGAN, UTAH. No trial of modern times has created such universal attention as today attends that of Dreyfus, an Alsatian Jew in the engineering corps of the French army. The circumstances of his trial and conviction and the subsequent developments, together with the tragic trial of Zola and the suicide of Col. Henry, have turned the eyes of the whole world to France and to the peculiarities of her administration of the law. Before the circumstances of his trial are given, a brief explanation of the administration of law in France is necessary in order to comprehend how it is possible for a man to be tried and convicted according to the procedure adopted in the case of Dreyfus. France is a republic, but a republic in name only, for civil rights and the great bulwarks of liberty are no more enjoyed on the west than they are on the east of the Rhine. France, like her neighbor, Germany, is a military despotism, but poses before the world in the name of a republic. There is a fundamental differ-

ence between the Germanic and the Romanic idea of the state. The Roman power was that of the strongest centralization wherein the individual is supposed to contribute to some ideal that is constantly held up as the chief purpose of his existence. Among the Teutonic races there is much more of individual liberty enjoyed in the administration of government ; and this liberty and the principles of free institutions have been most highly developed in England and America. There are, therefore, fundamental differences between the administration of law in France and its administration in Englishspeaking lands. In the first place, France has a peculiar kind of law, known, it is true, to continental countries, but hardly comprehensible to minds that have been brought up under the influence and effects of the common law. This French law is sometimes called droit administratif, or administrative law. The traveler in France soon learns, if America is his home, that the law does not work there as in his native land; that officers are overbearing, that they are inconsiderate, that they do very much as they please, and that there is often no remedy against what may prove to be merely their whims. This grows out of that peculiar administrative law, a law by which the administrative oflicers of the entire government are controlled. In America when an oflScer oversteps his bounds there is always an appeal to an independent system, to the judiciary. The facts are gone into, and he enjoys all the legal advantages of an independent investigation. Such, however, is not the case in France. If an officer oversteps his authority; if he acts unreasonably or unjust he is in no way responsible to an independent judiciary. He is tried before his superior officers in the same department, whose chief question seems to be whether or not the inferior officer has carried out the policy of his superior. If so, there is no cause of action. All remedy is lost. In military countries the executive department has its policy. If that is carried out inferior officers may generally depend upon the good-will of their superiors and do very much as they please. This is further understood when we realize that in France there is no such thing as a habeas corpus. If a man is thrown into prison he must await there the pleasure of those who sent him. The executive department and its ofiicers cannot be ques-

tioned. No judge can ask whether or not the facts warrant his imprisonment, or whether it is just for him to remain in durance vile. Trials, too, in France are wholly unlike those in this country. In the first place, if a man happens to be an official his case goes under an administrative department, where there are no scientific principles of evidence and pleadings to be considered. The officer in charge takes the case in his own hand and disposes of it in his own peculiar way. He is not hampered by any precedents; he is not governed by any principles, except those which he chooses to apply in each individual case. There is no examination of witnesses, as it is understood in this country. The attorney puts his question to the presiding judge, who, in turn, puts it in his own way to the witness on the stand. There is no system of cross examination by which it is easy to break down the testimony, and when evidence might often be shaken the witness who is frequently an officer of the government, protects himself behind his prerogatives by saying that he declines to answer the question. In almost all criminal proceedings these officers give the great bulk of the evidence, and the arbitrary disposition of the rights of the citizens is something incomprehensible to those brought up under a system of the common law. The whole thing is political; the court room is political, and newspapers do not hesitate to address judges in the same manner that they would address a candidate for election. National policy dictates the court often in an unusual manner, and the truth of this exposition of French law is strikingly exemplified in the trial of Alfred Dreyfus, a cause celebre. What were the circumstances of his trial? and why have they produced so much excitement throughout Europe and America? In the fall of 1894 La Libre Parole, an intensely anti-Jewish paper in the city of Paris announced the arrest of Captain Dreyfus on the charge of having given away army secrets to a foreign nation. Dreyfus was called to trial, but not without some hesitancy on the part of those who had his case in hand. A number of documents, commonly called a bordereau, had been discovered. These documents were unsigned, but they had evidently been communicated to a foreign nation, and there was some doubt whether, after all, Mr. Dreyfus was the author of this bordereau. Dreyfus was subject to a military tribunal, which is supposed to act as a

court of justice in the trial of the accused. The hesitancy of the ministry of war was condemned at once by an anti-Semitic leader, Mr. Drumont, in his paper, La Libre Parole. This is how Mr. Drumont talks to the ministry of war in its capacity of a high court of justice: "Look at this ministry of war, which ought to be the sanctuary of patriotism and which is a cavern, the hole of perpetual scandals, the cloaca which cannot be compared to the Augean stables because no Hercules has yet undertaken to clean it. Such a house should be perfumed with honor and virtue; instead it gives forth a constant stench. * * * Tomorrow, doubtless, they will applaud the minister of war when he boasts of the measures he has taken to save Dreyfus." This menace seemed to have had the desired effect, and General Mercier, minister of war, at once proceeded to the trial of Alfred Dreyfus. But the nature of his trial must remain largely secret to the world. It was an executive session of the court, and it was said that even the prisoner himself had not the opportunity of confronting some of the accusations made against him. It appears that he was convicted largely upon a document which he had not the opportunity of even seeing; neither had his counsel. So that he was sentenced to transportation for life on the malarial island called the Devil's Island, off the Coast of South America. He had not even the privileges of the French criminal when he was sentenced to transportation to New Caledonia where he may be permitted to take his wife and family. Upon his conviction, Dreyfus underwent degradation before the army in the presence of thousands of spectators who, fully sanguine of his guilt, took great pleasure in his humiliation. He was marched before the soldiers of his company, and in the presence of his comrades he was stripped of the insignia of his office and the buttons were torn from his coat. His sword was broken before his eyes and he was conducted out of the country. He had scarcely been sentenced to this punishment of living death when suspicions began to arise because of those who had been foremost in his conviction, and because of the secrecy of his trial. In the days of Gambetta the Jews had been highly honored among the ruling classes of France, and that circumstance had

aroused, it is said, the intense hatred and jealousy of the Jesuit Catholic portion of the country; and the Jesuits at once got into control of the military schools and began as rapidly as possible to reverse the order of things. The honored position held by Dreyfus, and the distinguished favor which he had received, it is said, awakened their jealousy. Hence, they became jubilant over his misfortune. But that excessive jubilation awakened feelings of suspicion and gave rise to the agitation which has followed it. What was this secret document? Its character has never been revealed. Policy of state is said to prevent its publicity; It might bring on a war between Germany and France. The highest policy of the state forbade any knowledge of it beyond the officers who stood at the head of the army. It did not appear at the trial exactly what nation had been guilty of buying the military secrets of France, but it was generally said that these secrets were conveyed to Germany and Italy. Both nations did not hesitate to deny that they had anything whatever to do with Captain Dreyfus, and said that so far as the accusations against him were associated with them they were utterly false. This gave rise to newspaper comment on all parts of the continent and in England. Protests were made from abroad in which it was pointed out that the means of his conviction were indeed open to question. This foreign interference inflamed the minds of the French and their chief purpose seemed now to be to convince themselves as firmly as possible that Dreyfus was guilty of the charges made against him. Besides these criticisms affected the honor of the French army, whose generals must be sustained, because a loss of confidence in them on the part of the soldiers would be suicidal to France. Besides the matter had been heard. It was in English law, res ajudicata, what is called in France chose jugee. Why should Europe be interested in opening the question that had already been settled according to the law of France? It appeared from the evidence that five experts in writing had been called in to testify. Two were convinced that the writing was not that of Dreyfus; three pronounced against him. Not long, however, after his conviction, which took place on the 10th of January, 1895, his attorney, Maitre Damange, expressed his most earnest conviction that Dreyfus was innocent of the charge

against him. Criticisms abroad led to an independent and investigating spirit at home. Col. Picquart, one of the chiefs of the secret service, declared that in his opinion Drejrfus was innocent, and furnished evidence at his command to the vice-president of the French Senate, M. Scheurer-Kestner. The vice-president, a man of superior ability and enjoying the confidence of the French people, interpolated the government and declared his intention to ask for a new trial, saying that he would undertake the rehabilitation of Captain Dreyfus ; that, as a matter of fact, he was not the real culprit. Thereupon Mathieu Dreyfus, the brother of Alfred who was convicted, at once visited the vice-president of the Senate, when the following conversation took place: "You know the name of the real author of the bordereau ? " "Yes," M. Scheurer-Kestner, replied, "but I have no authority to speak of it." "But if I should speak it, would you not deny it?" "No." "Esterhazy?" "That is the name," replied M. Scheurer-Kestner. "How did you know it?" "A banker, M. Castro, bought the fac-simile of the bordereau on the street. He instantly recognized the hand-writing as that of one of his former customers. He compared it with the letters which he had received from him, and on November 7th he came to give me this name and the proofs." Mathieu Dreyfus now brought charge against Esterhazy as the actual culprit. This led to the trial of Esterhazy, but singularly enough, and notwithstanding what appeared to be very strong evidence, he was acquitted and complimented by the presiding judge. Esterhazy was now held as the martyr of the Jews and there seemed to be a general disposition on the part of the French people to insist upon the guilt of Dreyfus as a defense by France against the charges of foreign countries. To their minds, France was on trial. Dreyfus was a secondary consideration, except so far as it was necessary to establish his guilt in order to maintain French honor. When one comes to consider the character of Esterhazy and some of the evidence found in his possession, it is remarkable that

he should have been made the hero of the hour, as he was upon his acquital. He seemed to be a man of low character. He had ruined his wife and children. He had become persona non grata wherever he had been in the French army ; was financially irresponsible, and at the time was living with a dissolute woman. When his house was searched two letters were found. In them he expressed hope that Germany would conquer France, and in further contempt of his country declared that beyond a certain point the Germans could throw away their swords and drive the French back with riding whips. Among the experts at the trial of Esterhazy and Dreyfus, it seems that five out of eight testified in favor of Dreyfus, two in the declaration that the writing was not that of Dreyfus and three in the declaration that the writing was that of Esterhazy. The agitation over this celebrated case led to constant interpolations of the ministry in the chamber of deputies at Paris, each minister of war declaring his absolute belief that Dreyfus was guilty, Cavagnac, even, going so far as to say that he had received subsequent evidence which took the question beyond all doubt. This was correspondence carried on between agents of the German and Italian governments, and had been furnished him by Col. Henry. This additional evidence of guilt was now ordered to be posted up throughout France as fresh evidence of the just policy of the army officers who had tried the unfortunate Jew. France and Germany at once hastened to deny the truthfulness of this latter evidence, and when Col. Henry, who had been in the secret service, was questioned as to the truthfulness of the documents he had produced, he confessed that he had been guilty of forgery. He was thereupon seized and imprisoned, not in Cherche Midi, but in the fortress at Mont Valerien. Soon after it was announced that he had committed suicide by cutting his throat, but the unusual circumstances of his imprisonment led to the suspicion that Col. Henry, who had been known as a straight-forward officer and whose work could always be relied upon, had been murdered in order that some of the army generals might escape the disgrace from evidence that he was likely to give in the matter. This has led to a general revulsion of feeling throughout France, and the belief began to grow that, whether or not the

forgery of Henry had anything to do with the establishment of the guilt or innocence of Dreyfus, the latter was entitled to a rehearing. Besides a new factor had entered into this celebrated case by an accusation made by Zola against the French President and military tribunal immediately after the acquital of Esterhazy. Zola was brought up and tried on the charge of defamation, and the publicity given to his trial has brought forward some striking peculiarities in the administration of French justice- The Echo de Paris, a staff newspaper, thus describes a scene during the trial of Zola: "A flood of insults drowns the voice of the advocate. The audience rises to its feet. There is whistling, groans; and canes are pounding the floor in cadence. If one closes one's eyes, the illusion is complete that the palace is about to tumble to pieces. Each minute the audience becomes more excited. Finally, it breaks down. The most offensive cries and shouts mingle with hisses and whistles. One by one, under the fixed stare of the spectators, the jurors quit the hall." Such a scene in a court of justice is not more astounding than the manner in which testimony was offered. General Pelliieux takes the stand. Read his testimony: "I have a soul of a soldier which revolts at hearing the infamous aspersions shower upon us. I can keep silence no longer. I cannot stand them trying to detach the army from its chiefs, for if the soldier cease to have confidence in them, what will the chiefs do in the day of danger^ which is, perhaps, nearer than people think? Then, gentlemen of the jury, your sons would be left to simple butchery." Labori, counsel for Zola, protested against some of these utterances and proposed to question the General. But we are told that the court forbade Labori to proceed. Zola was convicted of defamation and received the extreme penalty. He now appealed to the highest court of France, that of the Cassation. This court held that the procedure in bringing Zola to trial had been irregular, and that he was entitled to a re-hearing. Before his re-hearing could be heard Zola escaped from France, feeling as every disinterested person must have felt, that a re-trial would be a mockery of justice. After the confession of forgery and the death of Col. Henry, it became certain that there could be no peace in France until the

case of Dreyfus received a new hearing. Feeling began to grow throughout France that, after all, Esterhazy might be the real culprit. Whereupon Esterhazy fled from his country to London, where, it is said, he is peddling confessions of his forgery that led to the conviction of Dreyfus. Now, the court of Cassation has decided to open the case anew. There were three courses open to the supreme court of France. First, a denial for revision; second, quashing of the judgment and order for a new trial ; and, third, that more information was needed in the case of Dreyfus, and that such information would be sought for by the court in secret sitting, but with full power to call for all documents, summon witnesses, etc. The last course was adopted, but it is to be regretted that more publicity cannot be given to the investigations to be carried on, although in this investigation the counsel for the defendant Avill undoubtedly have the opportunity of presenting evidence in full and of overthrowing, if possible, all evidence brought against his client. He will also be tried under the new aw inaugurated in 1895 and extending in all criminal cases greater rights to the accused. This new law shows what has existed in France for centuries and is a remarkable illustration of the process of conducting cases of criminal procedure in a French court of justice. A certain Marquis de Nayve had been accused of murdering his wife's illegitimate son by throwing him over the rocks near Naples, a crime which he is said to have committed nine years before his trial. There is no grand jury in France, but the indictment—if such may be said to exist in France—is called the dossier, and is gotten up by one of the judges of the court called the "juge-dHntsrudionJ' This judge, who is a quasi prosecuting officer, may take his own time to investigate the case. The judge kept him there for seven months before getting out the indictment, or dossier. The trial of Nayve resulted in his acquittal. So outrageous an abuse of power led the French government to adopt measures for the trial of criminals which are more in consonance with the principles of right and liberty. The world will now await with deep interest and some anxiety the results of the additional investigations to be made in the case of Dreyfus; and yet, so far as the case is of interest to the Anglo-

Saxon, there is the wish that Dreyfus might enjoy the opportunites of a new trial under the common law system; that is, that he might have the privilege of confronting the witnesses against him, of having the investigation open and public and the greatest scrutiny given to the bordereau upon which he is said to have been convicted, and, above all, that he might enjoy the right of that common law presumption that he is innocent until proven guilty, and also enjoy the resolving of all doubt in his favor. There are no motives assignable today why Dreyfus should have betrayed the interests of France. He is a wealthy Jew, of a wealthy family. Money could not be a consideration. There is no reason why he should have favored Germany more than his native country, in which he enjoyed honors and emoluments, and to which he was attached by all the ties of birth and patriotism. The Dreyfus case, however, as a cause celebre, whatever may happen to Dreyfus, will, in a large measure, alienate the sympathies of all free people for the republic of France. It will publish to the world the fact that, although France is a republic in name, it is republicanism little in common with that of this country. The spirit of liberty and justice as found in the republicanism of France is but a shadow of those undying principles of free institutions as exemplified in the administration of law and order in England and America. Indeed the President of the French republic, M. Faure, has but little more genuine liberty than has the Czar of Russia. Compared to the President of the United States, he is in absolute bondage, bound by the traditions and military rules that hamper and strangle civil liberty, wherever the military arm is dominant. NOTE. Since the above was written, M. Quesnay de Beaurepaire, president of the civil section of the court of Cassation, has resigned his position and now charges the tribunal, with which he was associated, with bad faith and corruption in what he anticipates will be a favorable action in the revision of the Dreyfus case. The fact that M. de Beaurepaire is now contributing to the papers and charging the court, of which he was formerly a member, with bad faith, and appeals to the public to repudiate it and disrespect its integrity, must appeal to the ordinary Anglo-Saxon mind as something very remarkable. It shows that lack of respect which