"The prisoner having withdrawn, the court being cleared, deliberating with closed doors, the president collected the votes of the members; beginning with the junior, and voting himself the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.