THE "CHOSE JUGRE."
MR. LEO MAXSE'S article in the National Review for this month will dispose—for English readers— of the additional evidence against Captain Dreyfus on which M. Cavaignac laid so much stress in his speech in the Chamber on July 7th. It is one of the most singular facts about the Dreyfus case that the Minister of War— this time a civilian and a politician—should not have seen that the mere production of additional evidence is the most damning argument that can be alleged against the conduct pf the trial. He must know what the charge against the Court-Martial is. He must know that the officers composing it are alleged to have condemned Captain Dreyfus upon the strength of documents which were communicated to the Court without being commu- nicated to the prisoner or to the prisoner's counsel. He must know that by the Military Code the prosecutor is bound to lay before the accused person " all the docu- ments which may lead to his conviction," and that any judgment which violates the law in this respect ought to be brought before the Cour de Cassation by the Procureur-General with a view to its being annulled. In view of these facts it might have been expected that M. Cavaignac would have taken especial care to assert the sufficiency of the bordereau for the work it was made to do. For nobody denies that it was en the bordereau, and on the bordereau alone, that the conviction was founded. It is described in the official acte d'accusation of the Court-Martial as " la base de l'accusation portee contre le Capitaine Dreyfus," and we have the statement, made more than once by Maitre Demange, the counsel for the defence, that the bordereau was the only document shown to himself or his client. The most conclusive proof that could now be brought forward, other than the bordereau, of the justice of Captain Dreyfus's condemnation would be equally con- clusive of its illegality if it could be shown to have influenced the Court in their finding. For it would be " une piece pouvant servir a conviction," and as such it ought to have been laid before the accused. The fact that it was communicated to the Court, and not to Captain Dreyfus, would be all that the advocates of revision care to establish.
The late French Cabinet seem to have understood this. Their management of the Dreyfus case was not par- ticularly happy, but at least they recognised that the less they said about the evidence the less likely they were to land themselves in damaging admissions. No doubt this attitude had its drawbacks. The worth of the bordereau as a piece of evidence had grown less and less under criticism, and it was difficult for those who relied upon it to take no notice of this dwindling process. M. Cavaignac, we may suppose, saw this more clearly than the Ministers who had originally taken their stand on this single document. He had had time to note the weakness of any case of which the bordereau was the sole foundation, and, with an extraordinary forgetfulness of the course of the trial, he undertook to salve the con• sciences of the opponents of revision by the production of fresh and more damaging testimony to Captain Dreyfus's guilt. What this new testimony amounts to any one may read for himself in Mr. Maxse's damning analysis of its history and contents. Here it is enough to note the equally damaging testimony the production of these documents supplies to the illegality of Captain Dreyfus's condemnation. We may be sure that if M. Cavaignac had not realised the worthlessness of the bordereau--or, perhaps we should rather say, if he had not known how thoroughly some of his colleagues in the Cabinet had realised the worthlessness of the bordereau—he would not have risked the production of evidence which had never been shown to the prisoner. We may fairly suppose that by this time even the chiefs of the Army have pretty well given up the legality of the conviction, and have fallen back on its alleged justice. Most of us, probably, would admit that, bad as an illegal condemnation may be, an unjust condemnation is far worse, and many with whom the suspicion of illegality counts for little may have uneasy consciences when they think that they may be parties to the persistent condemnation of an innocent man. It is this class of listeners, whether in the Cabinet or the country, that we imagine M. Cavaignac to have had in view when he entered the Tribune on the 7th of last month. We should doubt whether even they have, on reflection, derived much comfort from what he said there. But, even if they have, they can hardly feel quite easy in view of the Minister's virtual admission that all that has been said about the Court-Martial was true, and that the sole evidence of the justice of Captain Dreyfus's con- demnation must be looked for in documents which are themselves evidence of its illegality.
Each fresh occasion for reconsidering the Dreyfus case —and friends and foes seem equally determined to pro- vide us with a constant supply of them—makes us addition- ally sensible of the blessing of that respect for technical points which is characteristic of English law. There is not one of us perhaps who has not kicked against this respect at one time or another. No doubt it does occasionally lead to a miscarriage of criminal justice. Some piece of evidence is excluded which would have made the case against the prisoner strong where it was weak, and so secured a just conviction in place of at acquittal which left out of Account some material fact. The Dreyfus case is an example of the mischief that may follow from that contempt for technicalities which some• times appears to us to be the proper attitude of those entrusted with the administration of justice. It must be conceded that the unwillingness to reopen a chose jugei of which so much has been heard is in itself a reasonably feeling. Finality is one of the most valuable elements it criminal procedure. It would be , simply intolerable ii revision were a regular part of every trial, and condemns' tion and sentence constituted nothing more than a single stage in a long process of attack and defence. What secures us against this danger in England is our techni• cality. We are content to let a condemned criminal go to the gallows or to penal servitude because we know that he has had every chance given him and has been allowed al the "law" that he can possibly claim. The ground on which the reconsideration of a criminal sentence is ordinarily demanded in England is the alleged discovery of evidence which could not be produced at the trial. In other words, it is not the reopening of a chose jugee that is sought, but the examination of evidence which, bad it been before the Court in the first instance, would presumably have guided it to a different conclusion. If there had been the same regard for technicalities in the Dreyfus Court-Martial that there would have been in a similar trial in this country, the chose juge'e would have been a much more respectable thing than it is now. Either the bordereau would have been the only evidence for the prosecution, in which case the verdict might have been one of " Not proven ! " or whatever is the corresponding term in French military jurisprudence ; or the additional documents on which M. Cavaignac relies would have been communicated to the prisoner as well as to the Judges, in which case the advocates of revision would have had the best of the argument. A single condemnation obtained by such expedients as those resorted to in the Dreyfus case doe' more harm to the sanctity of the chose jug& than a dozes undeserved acquita,ls on some technical issue.
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