Life of Napoleon Bonaparte. Volume III

APPENDIX

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.

"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, fait516 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, fait517 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."

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.

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.

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.

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.

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.

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.