INSTRUCTIONS BY NAPOLEON TO TALLEYRAND, PRINCE OF BENEVENTUM.
[See p. 15.]
This very singular memorandum contains the instructions given by Napoleon to Talleyrand, concerning the manner in which he wished him to receive Lord Whitworth, then about to quit Paris, under the immediate prospect of the war again breaking out. He did not trust, it seems, to that accomplished statesman the slightest circumstance of the conference; "although," as Talleyrand himself observed, as he gave to the Duke of Wellington the interesting document, in Napoleon's own hand-writing, "if I could be trusted with any thing, it must have been the mode of receiving and negotiating with an ambassador." From the style of the note, it seems that the warmth, or rather violence, which the first consul had thrown into the discussion at the levÉe, did not actually flow from Napoleon's irritated feelings, but was a calculated burst of passion, designed to confound and overwhelm the English nobleman, who proved by no means the kind of person to be shaken with the utmost vehemence. It may be also remarked, that Napoleon, while he was desirous to try the effect of a cold, stern, and indifferent mode of conduct towards the English minister, was yet desirous, if that should not shake Lord Whitworth's firmness, that Talleyrand, by reference to the first consul, should take care to keep open the door for reconciliation.
The various errors in orthography, as fait for fais or faites, dit for dis or dites, are taken from the original.
"St. Cloud, À 4½.
"Je reÇois votre lettre qui m'a ÉtÉ remise À la Malmaison. Je desire que la conference ne se tourne pas en partage. Montezvous y froid, altier, et mÊme un peu fier.
"Si la notte comtient le mot ultimatum, fait[516] lui sentir que ce mot renferme celui de guerre, que cette maniÈre de negocier et d'un supÉrieur À un infÉrieur. Si la notte ne comtient pas ce mot, fait[517] qu'il le mette, en lui observant qu'il faut enfin savoir À quoi nous en tenir—que nous sommes las de cet État d'anxiÉtÉ—que jamais on n'obtiendra de nous ce que l'on a obtenu des derniÈres annÉes des Bourbons,—que nous ne sommes plus ce peuple qui recevra un Commissaire À Dunquerque; que, l'ultimatum remis, tout deviendra rompÛt.
"Effrayez le sur les suites de cette remise. S'il est inebranlable, accompagnez le dans votre salon ...[518] de vous quitter dit lui, mais le Cap et l'Isle de GorÉe, sont ils ÉvacuÉs?—radoucissez un peu la fin de la conference, et invitez le À revenir avant d'Écrire À sa cour, enfin que vous puissiez lui dire l'impression qu'elle a fait sur moi, qu'elle pourrait Être diminuÉ par les mesures de ces evacuations du Cap et de l'Isle de GorÉe."
TRANSLATION.
St. Cloud, half-past four.
I received your letter, which was brought to me at Malmaison. I request that the conference do not go into dialogue. Show yourself cold, lofty, even a little haughty.
If his note contains the word ultimatum, make him sensible that that word imports war, since such a manner of negotiating only takes place betwixt a superior and an inferior. If the note does not contain that word, contrive to make him insert it, by observing to him that it is necessary at length we should know upon what footing we are to stand with respect to each other; that we are weary of this state of anxiety; that they will never obtain from us those advantages which they extorted during the latter part of the reign of the Bourbons; that we are no longer the same people who received an English commissary at Dunkirk; that the ultimatum being rejected, all treaty will be broken off.
Alarm him upon the consequences of that rejection. If he remains still immovable, accompany him into your saloon ... and at the moment of his departure, ask him incidentally, "By the way, the Cape and the Island of Goree, are they evacuated?" Soften your tone a little towards the end of the conference, and invite him to return before writing to his court. At last, you may hint that the unfavourable impression he has made on me may possibly be diminished by the evacuation of the Cape and the Isle of Goree.
No. II.
FURTHER PARTICULARS CONCERNING THE ARREST, TRIAL, AND DEATH OF THE DUKE D'ENGHIEN.
[See p. 52.]
This most melancholy history appears to deserve farther notice than we had it in our power to bestow, without too long interrupting the course of our narrative. It has been, and must for ever remain, the most marked and indelible blot upon the character of Napoleon Buonaparte. "A young prince," says the author of a well-reasoned dissertation on this subject, "in the flower of his age, treacherously seized in a neutral country, where he reposed under the protection of the law of nations, dragged into France, brought before judges, who had no pretension to assume that character, accused of supposed crimes, deprived of the assistance of a legal advocate or defender, put to death by night in the ditches of a state-prison;—so many virtues misconstrued, so many fond hopes crushed in the bud, will always render that catastrophe one of the most revolting acts which absolute power has been tempted to consummate."
The Duke d'Enghien was one of the most active and determined of the exiled princes of the House of Bourbon, to whom the emigrants and the Royalists who remained within France were alike devotedly attached. He was master of many of their secrets; and in July 1799, when the affairs of the Republic were in a very perilous state, and the Royalists were adjusting a general rising through all the south of France, his name was used upon the following extraordinary occasion.
A former member of the Representation, known as much by his character as a Royalist, as by his worth and probity, requested a private interview with General Bernadotte, then minister at war. The audience being granted by the minister, with whom he had some connexion, the representative entered into a long argument to prove what could not be denied—the disastrous and dangerous state of France, and then proceeded thus: "The republican system being no longer able to support itself, a general movement is about to take place for the restoration of the King, and is so well organised, that it can scarce fail to be successful. The Duke d'Enghien, lieutenant-general of the royal army, is at Paris at this very moment while I speak to you, and I am deputed by one of his most faithful adherents, to make known these circumstances to General Bernadotte. The prince esteems you, confides his safety to your loyalty, reckons on your assistance, and is ready to grant any conditions which you may attach to your services." Bernadotte replied to this unexpected communication, "That the Duke d'Enghien should have no reason to repent the confidence which he had reposed in him: but that the loyalty which the duke had ascribed to him prevented his complying with the prince's wishes and request." He proceeded to state, that his own fame and personal interests were alike interested in his adherence to a government sprung from the will of the people; and that he was incapable of violating his oath of fidelity, or overthrowing the constitution to which he had sworn. "Make haste," he continued, "to convey my sentiments to him who sent you; tell him they are sincere and unalterable. But let him know, that for three days I will keep the secret which I have just learned, most profoundly. During that time he must find means of placing himself in security, by repassing the frontiers: but on the fourth morning, the secret will be mine no longer. This very morning, the term of three days will commence; make haste—and remember that the least imprudence on your part will be attended with fatal consequences."
It was afterwards ascertained that the deputy was mistaken, when he averred that the Duke d'Enghien was in Paris. It was pretty certain that he had never crossed the Rhine, and only waited the favourable reply of the minister at war to make the attempt. But in the light in which the case was presented to Bernadotte, his generous and firm conduct does not the less honour that eminent person, especially when contrasted with that of Napoleon. There might have been a strong temptation, and even a show of right, to have seized on the unfortunate Prince, supposing him to be in Paris, negotiating plans against the existing government, and tempting the fidelity of their principal ministers;—there could be none to kidnap him in foreign parts, when, however it might be suspected, it could not be shown by proof, that the unfortunate duke was concerned in any of the political intrigues which were laid to his charge. The tottering state of public affairs requiring so much vigilance and vigour on the part of the government, might also have been pleaded in excuse of Bernadotte, had he delivered up the Duke d'Enghien to dungeon or scaffold; while Napoleon, on the contrary, took the unhappy prince's life at a moment when his own power was so firmly established, as rather to incur danger than to acquire safety by the indulgence of a cruel revenge. The above anecdote, not, we believe, generally known, may be relied upon as authentic.
Napoleon, four years later, adopted towards the unfortunate prince that line of severity with which the world is acquainted. His broad vindication uniformly was stated to be, that the duke had offended against the laws of the country, and that, to put a stop to conspiracies, he had, from the beginning, determined to let the law take its course against him. He alleged, as we shall hereafter notice, various pleas in palliation or excuse; but his chief defence uniformly consisted in an appeal to the laws; and it is therefore just to the memory of Napoleon and his victim, that we should examine whether, in a legal sense, the procedure against the Duke d'Enghien is vindicated in whole or in part. The labours of Monsieur Dupin, the learned author of a pamphlet already quoted, have furnished us with an excellent work on this subject.
The case of the unfortunate duke must always be admitted to be a hard one. This is not denied by Buonaparte himself; and, on that account, it is the more necessary to the vindication of those upon whom his fate depended, to bring their procedure within the pale of the law. We are not now talking of reconciling the tragedy to the general rules of justice, generosity, or humanity; but in resigning the arguments which these afford, we are the more entitled to expect that the procedure which we impugn should, however harsh or cruel, be at least in strict conformity with the existing laws of France at the time, and such as could be carried on and vindicated by daylight, and in an open court. This is surely limiting our inquiry to the narrowest possible ground; and we shall prosecute the subject by examining the process in detail.
ARREST OF THE DUKE D'ENGHIEN.
Every arrest, to be legal, must be so in three points of view: 1. As to the place where it is made; 2. concerning the person whom it regards; 3. in respect of the grounds on which it proceeds.
The duke was residing in the territories of the Elector of Baden, a sovereign prince who had not ventured to afford him that refuge without consulting the French governor on the subject, and who was authorised to believe that his affording hospitality to the unfortunate prince would afford no cause of rupture with his powerful neighbour. The acquiescence of the French government affords too much reason to suppose, that the measure afterwards adopted had been for some time premeditated; and that there was a secret design of detaining the victim within reach of the blow which they had already resolved to strike, when they should see convenient. Whether this was the case or no, the Duke d'Enghien was residing under protection of the law of nations, which proclaims the inviolability of the territories of one state by the soldiers of another, unless in case of war openly declared. It would be wasting arguments to show that the irruption of the French troops into the territory of Baden, and the seizure of the prince and his retinue, were directly contrary to public law, and could only be compared to an incursion of Algerines or robbers. Thus the place of arrest was highly and evidently illegal.
The charge on which the arrest was granted did not improve its legality. The only laws which could be referred to as applicable to the occasion, are those of 28th March, 1793, and of 25 Brumaire, An III. tit. 5, sect. i., art 7. By these, it is provided that emigrants, who have carried arms against France, shall be arrested, whether in France, or in any hostile or conquered country, and judged within twenty-four hours, by a commission of five members, to be named by the chief of the État major of the division of the army quartered in the district where they are found. A third law extended this order to all emigrants of every description, arrested within the territory of the Republic; but provided that the court should consist of seven persons, instead of five, to be named by the general commanding the division in which the arrest was made. These ferocious laws had in practice been so far modified, that it was laid down in the law books, that although, speaking strictly, they continued to exist, yet "the government always limited to deportation the sentence of such emigrants as were arrested within the French territory."[519] Before reviving them in their utmost severity against a single individual, it was therefore doubly incumbent to show that the party arraigned fell within these charges.
By no force of construction could the Duke d'Enghien be brought under the influence of these laws. He was not, properly speaking, an emigrant, nor did he possess the qualities of such. He was a Prince of France—as such declared an alien, and banished for ever from France. But, what is much more to the purpose, the Duke d'Enghien was neither found within France, nor in the precincts of any hostile or conquered country; but brought by force from a territory neutral to, and friendly in its relations with, France; and that without legal warrant, and by main force. Buonaparte took credit to himself for having prevented the execution of these laws against emigrants who had been forced on the shore of France by tempest, and had thereby come under the letter, though not the spirit, of the law. How much more ought the Duke d'Enghien's case to have been excepted, who was only within France by the force exercised on his person, and, instead of being arrested within the territory, as the law required, was arrested in a neutral country, and brought into France against his will? The arrest was therefore, so far as respected the person on whom it was used, an act of illegal violence; and not less so considering the grounds on which it proceeded, since there was no charge founded on any existing law.
INCOMPETENCY OF THE COURT.
A military commission was assembled at Paris, to take under trial the Duke d'Enghien, accused of having borne arms against the Republic—of having been, and of still being in the pay of England—and, lastly, of having taken part in the conspiracies against the safety of the Republic, both external and internal.
Mons. Dupin, by the most decisive arguments and authorities, shows, that although the military commission might possibly be competent judges in the case of bearing arms against France, or receiving pay from England, yet the trial of a criminal accused of political conspiracy, was totally beyond the power of a court-martial, and could only be taken cognizance of by the regular tribunals. He quotes decisions of the minister of justice upon this point of jurisprudence, and concludes by applying to the military commission the well-known brocard of law, Nullus major defectus, quam potestatis.
IRREGULARITIES IN THE PROCEDURE.
I. The procedure took place at the dead of night, contrary to the laws of France and every civilized country. The worn-out and exhausted criminal was roused at midnight from the first sleep he had been permitted to enjoy for three nights, and called in to place himself on defence for his life, whilst, through fatigue of body and mind, he could scarcely keep himself awake.
He answered to their interrogatories in a manly and simple manner; and by the French order of process, his answers ought to have been read over to him, and he should have been called upon for his remarks upon the exactitude with which they had been taken down; but nothing of this kind was proposed to the Duke d'Enghien.
II. The French law enjoins, that after closing the interrogatory, the reporter should require of the accused person to make choice of a friend for the purpose of conducting his defence. The accused, it further declares, shall have the selection amongst all the persons present, and failing his making such a choice, the reporter shall select a defender to act on his behalf. No such choice was allowed to the Duke d'Enghien; and, indeed, it would have been to little purpose; nor was any legal assistant assigned to him in terms of the law. The law presumes an open court at a legal hour, and held in broad daylight. It would have been but an additional insult to have required the duke to select a friend of a defender among the gendarmes, who alone were bystanders in the castle of Vincennes, or at the hour of midnight. Contrary, therefore, to the privilege of accused persons by the existing law of France, the accused had no benefit either of legal defence, or friendly assistance.
DEFECTS OF THE SENTENCE.
The trial itself, though it deserves not the name, took place on the day after the interrogatory, or more properly on the night of that day, being what was then called the 30th Ventose;—like the previous interrogation, at the hour of midnight. The whole castle of Vincennes was filled with gendarmes, and Savary was in the actual command. He has published that he was led there by curiosity, though the hour was midnight, and the place so strictly guarded against every person, saving those who were to be officially concerned, that even one of the officers, who had been summoned, had considerable difficulty in procuring admission. We shall presently see if his presence and conduct indicated the part of a mere bystander; for the vindication which he was pleased to publish, drew forth that of General Hullin, president of the military commission, who has informed us of several important circumstances which had escaped the memory of the Duke of Rovigo, but which bear, nevertheless, very much on the point at issue.
The court being constituted duly, the warrant was read, which contained the charge against the prisoner. It accused him, 1. Of having fought against France; 2. Of being in the pay of England; 3. Of plotting with the latter power against the internal and external safety of the Republic. Of the two first counts, as they may be termed, of the indictment, we have already shown that they could not be rendered cognizable under any law then existing in France, unless qualified by the additional circumstance, that the emigrant accused had been found either within France, or in a country hostile to, or which had been subdued by France, which could not be stated to be the case of the Duke d'Enghien. Respecting the third count, the military commission were not legally competent to try it; the courts ordinary of France alone had the alleged crime within their jurisdiction. Nevertheless, in mockery of the form, as well as the essence of law, the court proceeded upon the trial upon two points of accusation, which were irrelevant, and upon a third, which was incompetent.
The mock trial, when brought on, was a mere repetition of the interrogatory which the duke had been previously subjected to. We are now to give an abstract of both interrogatories, only premising that within their limits must be found the whole head and front of the offences charged. The guilt of the accused must either be proved from thence, or his innocence must be acknowledged; the sole evidence produced, or attempted to be brought forward, on the trial, being the answers of the duke.
Upon the first examination, the following admissions were made by the accused. The duke avowed his name, birth, and quality; his exile from France, and the campaigns which he had made with the emigrant army under his grandfather, the Prince of CondÉ. He stated the various countries which he had inhabited since the army of CondÉ was disbanded, and that he had resided at Ettenheim for two years and a half, by permission of the elector. Interrogated, if he had ever been in England, or if that government had made him any allowance? He answered, he had never been in that country; but that England did allow him an annuity, which was his only means of support. Interrogated, what were his reasons for residing at Ettenheim? He answered, that he had thoughts of settling at Fribourg in the Brisgaw, as a pleasanter place of residence, and had only remained at Ettenheim on account of the elector's indulging him with full liberty of hunting, to which amusement he was very partial. Interrogated, if he kept up any correspondence with the French princes of his family who were at London, and if he had seen them lately? He replied, that he naturally kept up a correspondence with his grandfather ever since he had left him at Vienna, after the disbanding of his army; but had not seen him since that period;—that he also corresponded with his father, (Duke of Bourbon,) but had not seen him since 1794 or 1795. Interrogated, what rank he occupied in the army of CondÉ? He answered, commandant of the vanguard; and that when the army was received into Prussia, and divided into two corps, he was made colonel of one of them. These admissions might have been deduced or presumed from the simple fact, that the individual before them was the Duke d'Enghien, whose history and military services were sufficiently known.
The subsequent part of the examination consisted in an attempt to implicate the accused in the conspiracy of Georges, Pichegru, and Moreau. The reader will see how far his answers make the charge good.
"Interrogated, if he knew General Pichegru, and if he had any connexion or intercourse with him? Replied, I do not know him; I have never, I believe, seen him; I have had no conversation with him; I am glad I have not been acquainted with him, if the story told be true respecting the vile means which he proposed making use of."
"Interrogated, if he knew General Dumouriez, or had any connexion with him? Answered, that he knew him no more than the other—he had never seen him."
"Interrogated, if, after the peace, he had not kept up a correspondence in the interior of the Republic? Replied, I have written to some friends that are still attached to me, who had fought along with me, both on their affairs and my own. These correspondences were not of the character which I conceive to be alluded to."
The report further bears, that when the process-verbal was closed, he expressed himself thus:—"Before signing the process-verbal, I make with urgency the request, to have a particular audience of the First Consul. My name, my rank, my manner of thinking, and the horror of my situation, make me hope he will not refuse my desire."
In the second interrogatory, in presence of the military commission, the duke adhered to what he had said in his preceding examination, with the sole additional circumstance, that he was ready to renew the war, and to take service in the approaching hostilities betwixt England and France.
The commission, as appears from record of their proceedings, received no other evidence of any kind whatever, whether written or oral, and undertook the task which they knew was expected from them, of extracting reasons for awarding a capital punishment out of a confession from which nothing could be drawn by any ordinary process of reasoning, save that the accused person had been in arms against France, and was willing to be so again—but in open warfare, and in the hope of recovering what he considered as the rights of his family—a case which could not be brought under the penalty of death, except under the laws of 28th March, 1793, and of 25th Brumaire, An. III., where the capital punishment is limited, as we have repeatedly said, to emigrants taken within the limits of France, or of countries hostile to her, or subjected by her arms. The avowal that the duke had a pension from England did not infer that he was in her military pay, nor, indeed, did he in fact hold that allowance on any other conditions than as an alimentary provision allowed by the generous compassion of the British nation. Neither could he be found guilty upon his candid avowal that he was willing, or even desirous, to enter into the English service; for, supposing the actually doing so were a crime, the mere intention to do so could not be construed into one, since men are in this world responsible only for their actions, not for their thoughts, or the unexecuted purposes of their mind. No other evidence was adduced excepting the report of an officer of police, or state spy, sent to watch the Duke d'Enghien's movements, who declared that the Duke d'Enghien received many emigrants at his table, and that he was frequently absent for several days without his (the spy's) being able to discover where he went; but which suspicious facts were sufficiently explained, by his having the means of giving some assistance to his distressed companions, and his long hunting parties in the Black Forest, in which he was wont to pass many days at a time. A report from Shee, the prefect of the Lower Rhine, was also read; but neither Savary nor Hullin mention its import, nor how it was converted into evidence, or bore upon the question of the Duke d'Enghien's guilt or innocence. Hullin also mentions a long report from the counsellor of state, Real, where the affair, with all its ramifications, was rendered so interesting, that it seemed the safety of the state, and the existence of the government, depended on the judgment which should be returned. Such a report could only argue the thirst of the government for the poor young man's blood, and exhibit that open tampering with the court, which they were not ashamed to have recourse to, but certainly could not constitute evidence in the cause.
But both Savary and Hullin are disposed to rest the reason of the condemnation upon the frank and noble avowal of the prisoner, which, in their opinion, made it imperative on the court to condemn him. He uniformly maintained, that "'he had only sustained the right of his family, and that a CondÉ could never enter France save with arms in his hands. My birth,' he said, 'my opinions, must ever render me inflexible on this point.' The firmness of his answers reduced the judges," continues Hullin, "to despair. Ten times we gave him an opening to retract his declarations, but he still persisted in them immovably. 'I see,' he said, 'the honourable intention of the members of the commission, but I cannot resort to the means of safety which they indicate.'" And being acquainted that the military commissioners judged without appeal; "I know it," he replied, "and I do not disguise from myself the danger which I incur. My only request is, to have an interview with the First Consul." It is sufficiently plain, that the gallant bearing of the prince, so honourable to himself, brought him under no law by which he was not previously affected. But it did much worse for him in a practical sense. It avowed him the open enemy of Buonaparte, and placed each judge under the influence of such reasoning as encouraged Sir Piers Exton to the murder of a deposed prince at the hint of a usurper.[520]
The doom of the prisoner had been fixed from the moment he crossed the drawbridge of that gloomy state prison. But it required no small degree of dexterity to accommodate the evidence to the law, so as to make out an ostensible case of guilt, which should not carry absurdity and contradiction on its very front. This was the more difficult, as it is an express legal form in French courts-martial, that it shall express upon its record the exact fact for which death is to be inflicted, and the precise article of the law under which the sentence is awarded. The military commission had much more trouble in placing the record upon a plausible footing, than they found in going through the brief forms of such a trial as they were pleased to afford the accused. They experienced the truth of the observation, that it is much more easy to commit a crime than to justify it.
VERDICT.
The first difficulty which occurred was to apply the verdict to the indictment, to which it ought to be the precise answer, since it would be monstrous to find a man guilty of a crime different from that of which he stood accused; as, for example, to find a man guilty of theft, when he had been charged with murder, or vice versa. The judges of this military commission had, at the same time, the additional difficulty of reconciling the verdict with the evidence which had been adduced, as well as with the accusations laid. If the reader will take the trouble to peruse the following copy of the record, with our observations, which we have marked by italics, they will see how far the military court of Vincennes had been able to reconcile their verdict with the act of accusation, and with the sentence.
The verdict bears: "The voices being collected on each of the underwritten questions, beginning with the younger, and ending with the president; the court declares Louis Antoine de Bourbon, Duke de Enghien,—
"1. Unanimously guilty of having borne arms against the French Republic."—This is in conformity with the accusation, and the evidence; therefore, so far regular.
"2. Unanimously guilty of having offered his services to the English government, the enemy of the French Republic."—This is not in conformity to the charge. The duke only said he was willing to join the English in the new war, not that his services had been either offered or accepted. The former was a matter of intention, the latter would have been a point of fact.
"3. Unanimously guilty of having received and accredited agents of the said English government, of having procured them means of intelligence in France, and of having conspired with them against the internal and external safety or the Republic."—The facts alluded to in this clause of the verdict may be considered as contained by implication in the general charge in the accusation, that the duke plotted with England. But certainly they are not there stated in the precise and articulate manner in which a charge which a man must answer with his life ought to be brought against him. As to evidence, there is not, in the examination of the duke, the slightest word to justify the finding him guilty of such an offence. Not a question was put, or an answer received, respecting the plot with England, or the duke's accession to and encouragement of them.
"4. Unanimously guilty of having placed himself at the head of a large collection of French emigrants, and others, formed in the frontiers of France, in the county of Fribourg and Baden, paid by England."—There is not a word of such a charge in the accusation or indictment, nor was the slightest evidence of its existence brought forward before the court, or inquired into upon the duke's examination.
"5. Unanimously guilty of having had communications with the town of Strasburg, tending to excite insurrection in the neighbouring departments, for the purpose of a diversion in favour of England."—There is no mention of this charge in the accusation—there is no mention of it in the evidence.
"6. Unanimously guilty of being one of the favourers and accomplices of the conspiracy carried on by the English against the life of the First Consul; and intending, in the event of such conspiracy, to enter France."—There is no mention of this charge in the act of accusation or indictment. The evidence on the subject goes distinctly to disprove the charge. The Duke d'Enghien said he did not know Pichegru, and had no connexion with him; and added, that he rejoiced at the circumstance, if it was true that the general aimed at success by means so horrible.
The result of the whole is, that this most liberal commission, in answer to the three charges, brought in a verdict upon six points of indictment; and that, on applying the evidence to the verdict, not one of the returns is found supported by evidence, the first excepted; of the other five, of which three at least are gratuitously introduced into the charge, four are altogether unsupported by the evidence, and the sixth is not only unsupported, but disproved, being in direct contradiction to the only testimony laid before the commissioners.
SENTENCE.
Having drawn up their verdict, or answer to the act of accusation, with so little regard either to the essence or forms of justice, this unconscientious court proceeded to the sentence, which, according to the regular form, ought to bear an express reference to the law by which it was authorised. But to discover such a law, must be inevitably a work of some difficulty; and, in the mean time, the devoted victim still lived. The record of the court-martial bore the date, two in the morning;[521] so that two hours had already elapsed upon the trial and subsequent proceedings, and it was destined the sun should not rise on the devoted head of the young Bourbon. It was, therefore, necessary that he should be immediately found guilty and executed, as all that was considered the direct object for which the court was convened. It would be time enough to consider after he was no more, under what law he had suffered, and to fill up the blanks in the sentence accordingly. One would have thought such a tragedy could never have taken place in a civilized age and country; seven French officers, claiming to be esteemed men of honour by profession, being the slavish agents. It must, one would say, have occurred at Tripoli or Fez, or rather among the Galla and Shangalla, the Agows, or the Lasta of Abyssinia. But here is the sentence to speak for itself:—
"The prisoner having withdrawn, the court being cleared, deliberating with closed doors, the president collected the votes of the members; beginning with the junior, and voting himself the last, the prisoner was unanimously found guilty; and in pursuance of the——blank——article of the law of——blank——to the following effect————[two or three lines left blank for inserting the law which should be found applicable]————condemned to suffer the punishment of death. Ordered that the judge-advocate should see the present sentence executed, IMMEDIATELY."
Most laws allow at least a few days of intervention betwixt sentence and execution. Such an interval is due to religion and to humanity; but in France it was also allowed for the purpose of appeal. The laws, 25 Brumaire, An. VI., and 27 Ventose, An. VIII., permitted appeals from the judgments of courts-martial. The decree of the 17 Messidor, An. XII., permitting no appeal from military sentences, was not then in existence; but if it had, even that severe and despotic enactment allowed prisoners some brief space of time betwixt this world and the next, and did not send a human being to execution until the tumult of spirits, incidental to a trial for life and death, had subsided, and his heart had ceased to throb betwixt hope and fear. Twenty-four hours were permitted betwixt the court of justice and the scaffold—a small space in ordinary life, but an age when the foot is on the brink of the grave. But the Duke d'Enghien was ordered for instant execution.
Besides the blanks in the sentence of this court, as originally drawn up, which made it a mockery of all judicial form, there lay this fatal error to the sentence, that it was not signed by the greffier, or clerk of court.
We do the judges the credit to believe that they felt for the accused, and for themselves; saw with pity the doom inflicted, and experienced shame and horror at becoming his murderers. A final attempt was made by General Hullin to induce the court to transfer to Buonaparte the request of the prisoner. He was checked by Savary. "It will be inopportune," said that officer, who, leaning on the back of the president's chair, seems to have watched and controlled the decisions of the court. The hint was understood, and nothing more was said.
We have given one copy of the sentence of the court-martial. It was not the only one. "Many draughts of this sentence were tried," says Hullin; "among the rest, the one in question: but after we had signed it, we doubted (and with good reason) whether it were regular; and, therefore, caused the clerk make out a new draught, grounded chiefly on a report of the privy-counsellor, Real, and the answers of the Prince. This second draught was the true one, and ought alone to have been preserved."
This second draught has been preserved, and affords a curious specimen of the cobbling and trumping up which the procedure underwent, in hopes it might be rendered fit for public inspection. Notwithstanding what the president says was intended, the new draught contains no reference to the report of Shee, or the arguments of Real, neither of which could be brought into evidence against the duke. The only evidence against him, was his owning the character of a prince of the blood, an enemy by birth, and upon principle, to the present government of France. His sole actual crime, as is allowed by Monsieur Savary himself, consisted in his being the Duke d'Enghien; the sole proof was his own avowal, without which it was pretended the commissioners would not have found him guilty.
To return to the new draught of this sentence. It agrees with the original draught, in so far as it finds the duke guilty of six criminal acts upon a charge which only accused him of three. But there is a wide distinction in other respects. The new draught, though designed to rest (according to Hullin's account) upon the report of the privy-counsellor, Real, and the answers of the prince, takes no notice of either. It does make an attempt, however, to fill up the blanks of the first copy, by combining the sentence with three existing laws; but how far applicable to the case under consideration, the reader shall be enabled to judge.
Article II. 1st Brumaire, An. V. Every individual, of whatever rank, quality, or profession, convicted of being a spy for the enemy, shall be punished with death.—The Duke d'Enghien had neither been accused nor convicted of being a spy for the enemy.
Article I. Every plot against the Republic shall be punished with death.—There was no evidence that the Duke was engaged in any plot; he positively denied it on his examination.
Article II. All conspiracies or plots tending to disturb the state by a civil war—to arm the citizens against each other, or against lawful authority, shall be punished with death.—Here the same want of evidence applies.
Upon the whole, it appears that the law could neither be so moulded as to apply to the evidence, nor the evidence so twisted as to come under the law—the judges were obliged to suppress the one or the other, or to send their sentence forth with a manifest contradiction on the face of it.
But this second draught of the sentence was so far conforming to the law, that it was signed by the greffier or clerk of court, which was not the case with the former. It was also more indulgent towards the accused; for the order for immediate execution was omitted, and its place supplied by the following details:—
"It is enjoined to the capitaine rapporteur instantly to read the present judgment to the condemned person in presence of the guard assembled under arms.
"Ordered that the president and the reporter use their diligence according to the legal forms, in despatching copies of this procedure to the minister at war, the great judge, minister of justice, and to the general in chief, governor of Paris."
By the interposition of these legal forms, the commissioners unquestionably desired to gain some time, to make interest with Buonaparte that he might not carry his cruel purpose into execution. This has been explained by the president of the court-martial, General Hullin himself, who, blind, aged and retired from the world, found himself obliged, on the appearance of Savary's vindication of his share in the murder of the Duke d'Enghien, to come forward, not to vindicate his conduct, but, while expressing his remorse for the share he really had in the tragedy, to transfer the principal charge to the superior officer, who was present during the whole trial, to overawe, it would seem, and to control the court. His account is in these words:—
"Scarcely was it (the sentence) signed, when I began a letter to Napoleon, in which I conveyed to him, in obedience, to the unanimous wish of the court, the desire expressed by the prince of an interview with the first consul; and farther, to conjure the first consul to remit the punishment, which the severity of our situation did not permit us to elude. It was at this moment that a man interfered, [Savary,] who had persisted in remaining in the court-room, and whom I should name without hesitation, if I did not recollect that, even in attempting a defence for myself, it does not become me to accuse another. 'What are you doing there?' said this person, coming up to me. 'I am,' I replied, 'writing to the first consul, to convey to him the wish of the prisoner, and the recommendation of the court.'—'You have done your business,' said he, taking the pen out of my hand, 'and what follows is mine.' I confess that I thought at the moment, and so did several of my colleagues, that he meant to say, that the conveying of these sentiments to the first consul was his business. His answer, thus understood, left us still the hope that the recommendation would reach the first consul. I only recollect, that I even at the moment felt a kind of vexation at seeing thus taken out of my hands, the only agreeable circumstance of the painful situation in which I was placed. Indeed, how could we imagine, that a person had been placed about us with an order to violate all the provisions of the law? I was in the hall, outside the council-room, conversing about what had just occurred. Several knots of persons had got into private conversation. I was waiting for my carriage, which not being permitted (any more than those of the other members) to come into the inner court of the castle, delayed my departure and theirs. We were ourselves shut in, and could not communicate with those without, when an explosion took place—a terrible sound, which struck us to the hearts, and froze them with terror and fright. Yes, I swear, in the name of myself and my colleagues, that this execution was not authorised by us; our sentence directed that copies of the sentence should be sent to the minister of war, the grand judge, and the general Governor of Paris. The latter alone could, according to law, direct the execution; the copies were not yet made; they would occupy a considerable portion of the day. On my return to Paris, I should have waited on the governor—on the first consul; who knows what might have happened?—but all of a sudden, this terrific explosion informed us that the prince was no more. We know not whether he [Savary] who thus hurried on this dreadful execution, had orders for doing so. If he had not, he alone is responsible; if he had, the court, which knew nothing of these orders, which, itself was kept in confinement—the court, whose last resolution was in favour of the prince, could neither foresee nor prevent the catastrophe."
EXECUTION.
The gallant young prince, therefore, was cut off in the flower of his age, and, so far as we can see, on no evidence whatever, excepting that he was a son of the house of Bourbon, the enemy, by his birth, of the temporary Governor of France, but his public and declared enemy, who had never owed duty to him, and who had not been taken engaged in any active proceedings against him. The descendant of the great CondÉ was condemned to a bloody death, by a court, the judges of which were themselves prisoners, at the hour when thieves and murderers deal with their victims, and upon an unproved accusation tried by incompetent judges.
The research of the lawyer must go beyond the prince's nameless and bloody tomb to inquire into the warrant by which he was consigned to it. Was it by virtue of the first or of the second draught of that sentence, which the military erudition found so much difficulty in cobbling up into the form of a legal sentence? We suppose it must have been in virtue of the first draught, because that commands instant execution. If this conjecture is allowed, the Duke d'Enghien was executed in virtue of a document totally deficient in solemnity, since that first remains blank in its most essential parts, and is not signed by the greffier or clerk of court—a formality expressly enjoined by law.
If, again, we suppose that the second, not the first copy of the sentence, was the warrant made use of, the proceeding to execution will be found not less illegal. For that second draught, though it exhibits no blanks, and is signed by the greffier, and is so far more formal than the first, gives no authority for instant execution of the sentence. On the contrary, it enjoins the usual legal delays, until the copies should be made out and sent to the various officers of state mentioned in the warrant itself. The effect of this delay might have probably been the saving of the unfortunate prince's life; for if Paris had not heard of his death at the same time with his arrestment, it is not likely that Buonaparte would have braved public opinion, by venturing on concluding his nocturnal tragedy by a daylight catastrophe. But, laying that consideration aside, it is enough for a lawyer to pronounce, that such sentence, executed in a manner disconforming from its warrant, is neither more nor less than A MURDER; for as such are construed in the laws of every civilized country, those cases in which the prompt will of the executioner anticipates the warrant of the judge.
GENERAL VIEW OF THE PROCEDURE.
Looking over this whole procedure, with the eyes of one accustomed to juridical reasoning, it is impossible to resist the conviction, that a train of more gross inconsistencies, practised with a more barefaced audacity, or for a worse purpose, does not stain and disgrace the page of history. The arrest was against the law of nations; the constitution of the court was against the military law; the mode of conducting the trial was against the law of France; the sentence was contrary to the forms of every civilized nation; the execution was a contravention of the laws of God and man. It would be absurd to term the slaughter of the Duke d'Enghien a murder committed by the sword of justice, unless we understand Hogarth's parody of that allegorical figure, with one eye open, one scale depressed with a bribe, and a butcher's knife in her hand instead of the even-swayed sword.
Having endeavoured to trace this bloody and cruel proceeding in a legal point of view, we must, before leaving the subject, consider what apologies have been set up against the black charge which arises out of the details.
The first of these screens would have been doubly convenient, providing it could have been rendered plausible. It amounted to the transference of the more active part of the guilt from Napoleon himself to Talleyrand, whom it would have been delicious revenge to have overwhelmed with the odium of a crime which must have made an impassable gulf between the ex-imperial minister and the restored royal family. Napoleon therefore repeatedly hinted and expressed, that the measure of the Duke d'Enghien's death had been thrust upon him by the advice of Talleyrand, and that, without giving the matter due consideration, he had adopted the course recommended to him. It was afterwards still more broadly averred, that Talleyrand had intercepted a letter written by the prince from Strasburg, begging his life, and offering, in grateful return, to serve Napoleon in his armies. This boon Napoleon intimates he might have granted, if Talleyrand had delivered the letter; but by intercepting it, that statesman became the actual murderer of the unfortunate prince.
There are two modes of considering every allegation, that is, according to the presumptive, or the positive and direct evidence brought in support of it. If we look at the former, we cannot discern the shadow of a motive why Talleyrand, however unprincipled we may suppose him, should have led his master into the commission of a great and odious crime, of which he was likely to have the whole unpopularity thrown upon himself, so soon as it should be found too heavy for his principal. Talleyrand was a politician; but so far as we have ever heard, possessed of no bloodthirsty disposition, and being himself descended from a noble family, was unlikely, to say the least, to urge the catastrophe of a young prince, against whom, or his family, he is never believed to have had any especial enmity. On the other hand, if we suppose him guided to the step by foolish and misguided zeal for Buonaparte's own interest, we traduce Talleyrand's mental capacity as much in the one case, as we should do his natural disposition in the other. No man knew better than the Prince of Beneventum, that power is, in enlightened nations, dependent on public opinion, and that the blood of an innocent and high-spirited enemy might indeed stain his master's throne, but could not cement its basis.—Again, if we regard the spirit displayed by the Duke d'Enghien upon his mock trial, when he declared he would not recall his avowed enmity to the French, in conformity to the hints thrown out by the court-martial, how is it possible that the same individual can be supposed capable of having, two days before, crouched to Buonaparte for his life; or how are we to reconcile his having offered to accept service under the first consul, with his declaration that it did not become a CondÉ to enter France, save with arms in his hands? We must suppose him a madman, if, having endeavoured to creep to Buonaparte's favour by the means of submission, he should have assumed an air of contumacy and defiance towards the judges who were to report his conduct on his trial to the first consul. The existence of the letter, and the fact of its being intercepted by Talleyrand, is, therefore, disproved as far as it can be, both by the character of the alleged writer, and of the minister for foreign affairs.
But, farther, it is disproved not only by reasoning À priori, but directly and from the state of facts, as far as negative evidence possibly can go. The whole proceedings against the Duke d'Enghien took place under the Counsellor of State, Real, and was managed entirely by the police; those safe, silent agents, who acted by immediate directions from the supreme head of the government, like the mutes of the seraglio, and were not liable to the control of any subordinate minister. Talleyrand never interfered, nor indeed had an opportunity of interfering, in it.
It was an officer of the police who was sent to inquire into the state of things at Ettenheim; and his report was made not to Talleyrand, not even to his proper chief, Real—but to Buonaparte himself. This is proved by Savary's own narrative, who says expressly, that "the first inspector of the gendarmerie received the report from the officer, and carried it himself to the first consul, instead of giving it to M. Real." The troops employed in the act of seizing the Duke d'Enghien, were also gendarmes, that is, policemen; and had a letter been written by their prisoner at Strasburg, or any where else, it would certainly have gone, like the report above mentioned, to the first consul, and not to Talleyrand to the foreign department. 2dly, There is a sad, but minute memorial of his imprisonment, kept by the duke as a sort of diary. In this record is no mention of his having written such a letter. 3dly, As the Baron St. Jacques, secretary to the unfortunate prince, was with his master constantly until the duke was taken from Strasburg, he was in a situation to offer a formal testimony against the very allegation of such a letter having been written, since he must have become acquainted with it, if it had any real existence. 4thly, The gendarmes who collected the duke's few papers, and made an inventory of them, would not have failed to secure such a document, if, as we said before, there had been such a document to secure.
For all these reasons, the story of the suppressed letter must be considered, from beginning to end, as an absolute fiction, invented to absolve Napoleon of what he felt was generally considered as a great crime, and to transfer the odium to Talleyrand, whose active offices in behalf of the royal family, his former master could neither forget nor forgive.
But the story of the letter was not the only one to which Napoleon had recourse to qualify the public indignation, which was so generally directed against him as the author of this unhappy deed.
In the examination of the persons who were arrested on account of accession to the conspiracy of Pichegru and Georges, it appeared, according to a very apocryphal statement by Napoleon, that a person occasionally appeared among the conspirators, of noble mien and distinguished manners, to whom the principal conspirators showed such symptoms of homage and deference as are paid only to princes. "He appeared," says Savary, "36 years of age, his hair was fair, his forehead open, of a middle stature and size. When he entered the apartment, all present, even Messrs. de Polignac and De Riviere, rose and remained standing in his presence." The police considered who this mysterious personage could be, and agreed it must be the Duke d'Enghien. To the impression this supposed discovery made on the mind of the first consul, was to be imputed, according to his own account and General Savary's, the mission of the police officer to Strasburg, as already mentioned. The report of the spy concerning the frequent absences of the Duke d'Enghien from Ettenheim, was held sufficient to identify him with the mysterious stranger at Paris—the resolution to kidnap him was formed and executed; and although no circumstances occurred to show that he had been in Paris, or to identify him with the incognito above alluded to, and although they were not even at the trouble of confronting the duke with the persons who described that individual, to see if they could recognise them to be one and the same; yet he was put to death, we are called upon to believe, upon the conviction that he was the visitor and friend of Georges Cadoudal, and the person in whose presence all the world testified such profound respect. Hardly, however, had the duke been huddled into his bloody grave, than we are told it was discovered that the mysterious personage so often alluded to, was no other than Pichegru; and the blame of keeping up the mistake in the first consul's mind is imputed to Talleyrand, who is destined to be the scape-goat in every version of the story which comes from Napoleon or his favourers.
We submit that no author of a novel or romance, when compelled, at the conclusion of his tale, to assign a reason for the various incidents which he has placed before the reader, ever pressed into his service a string of such improbable and inconsistent circumstances. Was it credible that a prince of the blood, supposing him to have ventured to Paris during the consulate, and mingled with a band of conspirators, would have insisted upon, or would have permitted, the honours of his rank, and thus have betrayed his character to those who did not profess to know more of him than from that circumstance only? The very mention of a line of conduct so improbable, ought to have made the legend suspected at the very outset. Secondly, How could a mistake possibly occur betwixt the person of the Duke d'Enghien and that of General Pichegru? The former was fair, with light-coloured hair; the latter was dark, with a high-coloured complexion, and dark hair. The duke was slight and elegant in his form; Pichegru was stout-made, robust, and athletic. The prince was but just turned of thirty; Pichegru was forty years of age and upwards. There was scarcely a point of similarity between them. Thirdly, How was it possible for those circumstances to have occurred which occasioned the pretended mistake? Under what imaginable character was Pichegru to have commanded the respects paid to a prince of the blood, and that not only from the Chouan Georges, but from the Messieurs De Polignac and De Riviere, who, it is pretended, remained uncovered in his presence? Lastly, On the voluminous trial of Georges, which was published in the Moniteur, though several of his band were brought to bear witness against him, there was no evidence whatever of royal honours being rendered either to him or any one else. So that the whole legend seems to have been invented, ex post facto, as a screen, and a very frail one, behind which Napoleon might shelter himself. It is evident, indeed, even by his own most improbable account, that if the Duke d'Enghien died in consequence of a blunder, it was one which a moment's consideration must have led every one to doubt, and which a moment's inquiry would have explained, and that Napoleon's credulity can only be imputed to his determination to be deceived. How Talleyrand could have contributed to it, is not intimated; but General Savary informs us that the consul exclaimed—"Ah! wretched Talleyrand, what hast thou made me do!" This apostrophe, if made at all, must have been intended to support a future charge against his minister; for as to being led by the nose by Talleyrand, in a matter where his own passions were so deeply interested, it is totally inconsistent with all that is recorded of Napoleon, as well as with the character, and even the private interest, of his minister.
After this tedious dissertation, the reader may perhaps desire to know the real cause of the extraordinary outrage. Napoleon's interest seemed no way, or very slightly, concerned, as the sufferer was, of all the Bourbon family, the farthest removed from the succession to the throne. The odium which the deed was to occasion, without any corresponding advantage, was, it might have seemed, to the politic and calculating spirit which Napoleon usually evinced, a sufficient reason for averting an unnecessary outrage; nor was his temper by any means of that ferocious quality which takes delight in causing misery, or in shedding blood.
All these things admitted, we must remind our readers, that, as Napoleon was calm and moderate by policy, he was also by temperament fierce and ardent, and had in his blood a strain of the wild and revengeful disposition, for which his native Corsica has been famous since the days of the ancients. The temptation was strong on the present occasion. He felt himself exposed to the danger of assassination, to which his nerves seem to have been peculiarly sensible; he knew that the blow would be aimed by the partisans of the royal family; and he suspected that they were encouraged by the exiled princes. In such a case, what is the principle of the savage state, or that which approaches next to it? A North American Indian, injured by one white trader who escapes his vengeance, retaliates on the first European who falls within his power. A Scotch Highlander, wronged by an individual of another clan, took vengeance on the first of the sept which he happened to meet. The Corsicans are not less ruthless and indiscriminate in their feuds, which go from father to son, and affect the whole family, without the resentment being confined to the particular persons who have done the wrong. Upon this principle the first consul seems to have acted, when, conceiving his life aimed at by the friends of the Bourbons, he sprung like a tiger at the only one of the family who was within his reach and his power. The law of nations and those of society were alike forgotten in the thirst of revenge; and, to gratify an immediate feeling of vengeance, he stained his history with a crime of which no time can wash away the infamy.
The tendency to violence, arising out of a fierce and semi-barbaric resentment and love of revenge, might perhaps have shown itself in more instances than actually occurred, had it not been for Napoleon's policy, and his respect for public opinion, which would not have borne many such acts of vindictive cruelty. But though he was able in general to subdue this peculiar temper, he could not disguise it from those by whom he was closely observed. When some one, in the presence of Mounier, pronounced a eulogium upon Napoleon, and concluded by defying any of the listeners to produce a parallel character—"I think I could find something like him," said Mounier, "among the Montenegrins."
END OF VOLUME THIRD.
