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.