Вальтер Скотт
Life of Napoleon Bonaparte. Volume III
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.