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.