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After several weeks' imprisonment, he was put upon his trial, before a council of marshals. The court was formed with great reluctance on the part of the members, and, after hearing the case, declared itself incompetent. The royalists became furious at this disappointment, and clamoured anew for his blood. He was handed over to be tried by the chamber of peers. The duc de Richelieu had the reputation of moderate talents and humane dispositions ; but so inhumanising is the effect of court passions and party spirit, that in addressing the chamber of peers, constituted as a high criminal tribunal, he demanded the blood of Ney in a tone of sanguinary and brutal rage.
“ It is,” said he, “ in the name of Europe, that the government comes to conjure the chamber.” From this appeal it was immediately and naturally concluded that the blood of Ney was demanded by the foreign ministers, and almost the whole odium was thrown on the duke of Wellington. Ney rested his defence upon the capitulation, or convention of Paris, and addressed a note in quadruplicate to the ministers of the four great powers. This note, signed with the name of Ney, argues that the convention of St. Cloud was entered into with marshals Wellington and Blucher, acting on behalf of the allies; that Louis XVIII. was proved by the treaty of the 30th of March, and several official declarations, to be one of those allies, and consequently bound by it; and that his (Ney's) case came clearly within the 12th article, which says,
66 Persons and private property shall be respected: the inhabitants, and in general all the individuals who are
in the capital, shall continue to enjoy their rights and liberty, without being molested or sought after for any thing relating to the functions they occupy, or shall have occupied, their conduct and their political opinions." The duke of Wellington returned the following answer :
“ I have had the honour of receiving the note which you
addressed to me on the 13th instant, relative to the operation of the capitulation of Paris in your case. The capitulation of Paris of the 3d July last was made between the commander-inchief of the allied and Prussian armies, on the one part, and the Prince d'Eckmuhl, commander-inchief of the French army, on the other, and related exclusively to the military occupation of Paris. The object of the 12th article was to prevent any measure of severity, under the military authority of those who made it, towards any persons in Paris, on account of any offices they had filled, or any conduct or political opinion of theirs; but it never was intended, and never could be intended, to prevent either the existing French government, under whose authority the French commander-in-chief must have acted, or any French government which might succeed to it, from acting, in this respect, as it might seem fit.”
Waving the argument, it is hard to read, without disgust, the abrupt indifference with which one soldier, at the summit of prosperity and power, answers the appeal of another, from a dungeon, with a capital accusation suspended over him by relentless enemies.
Two notes in rejoinder were put forward on behalf of Ney. The first, relative to the capitulation, says, “ Capitulations or conventions, concluded by commanders-in-chief, are not momentary and passing conventions, but are every where recognised as permanent engagements. Treaties thus formed by their representatives cannot be arbitrarily changed by governments, particularly to the prejudice of the security, of the property, the liberty, and the life of the party guaranteed by the original capitulation. No possession whatever acquired by the capitulation can be disposed of without fulfilling the conditions under which the acquisition has been made. A government, in yielding any possession whatever, cannot disengage itself from the guarantee of a capitulation ; and the obligation, not being discontinued, the oppressed do not the less preserve the right of claiming its protection against subsequent violations of their personal security. Civil or military persons, accused of political offences, covered by a capitulation, cannot be delivered up to be tried by a new government, nor even by that which is re-established in its rights. ..... The only deviation occurred at Naples, where the capitulation made by captain Foote was not respected by lord Nelson, and where the party surrendered, on the faith of the English government, to the re-established Neapolitan government, was persecuted and executed by the latter government; but lord Nelson pretended that captain Foote was not authorised to make a capitulation; and yet that odious transaction has cast a shade over the character of lord
Nelson; and it excited so much horror in England, that nothing but the eminent services of lord Nelson could have saved him from being the object of an accusation and judicial proceedings in parliament. .... The king of France cannot pretend that the capitulation is not binding on the grounds above stated. How can he seek to violate this single and most solemn of the articles, when with regard to the others, which are to the disadvantage of France, he has been compelled to lend himself to their rigorous fulfilment? The capitulation was concluded in the name of the allied powers, and the king of France, on the day of the capitulation, was only one member of the coalition, according to the terms of the declarations and proclamations of the coalesced powers, and in particular that of June 22d, signed by the duke of Wellington. .... It is essential to observe that the city of Paris has never been restored to the king ; that it is now in the military occupation of the allies; and that no person can proceed beyond its environs without a passport, countersigned by the military commandant of the allies."
The second note relates to an interview which Madame Ney had with the duke of Wellington. Its brevity and compactness render it proper to give it entire. “ The duke of Wellington, in a private audience granted yesterday (Nov. 13th) to Madame Ney, gave as the grounds for the disposition in which he was personally not to interfere at all in the trial of the marshal, that his majesty the king of France had not ratified the convention of the 30 July; that
the stipulation written in the 12th article expressed only the renunciation of the high powers, or their own account, of proceeding against any one in France for his conduct or political opinions ; that they had nothing then to meddle with in the acts of the king's government.
Madame la maréchale Ney cannot believe that this first opinion, manifested upon the 12th article of the convention of the 3d July, can be definitely maintained in the conference of the plenipotentiaries. In the attacks and invasion purely foreign of a conqueror, the enemy who penetrates into a country busies himself in nowise with the troubles that may have broken out in it; and it does not fall within the order of capitulations that those of a certain party shall not be proceeded against. It is, then, because in the present occurrence the war was special, and for the pacification of the interior, that they thought of stipulating it in terms of amnesty. The king, say they, has not ratified it; but the ratification has been sufficient, for the taking of possession followed from it. The condition of the besieged cannot be changed afterwards, unless things be re-established in statu quo. His highness has not sufficiently considered what ought to be essentially considered, that this 12th article was the subject of a discussion between the English and Prussian commissioners and the commissioners of the French army, and that it was well understood that this stipulation took place on account of the king, and not on account of the allied armies, who had no right whatever to act against such or such party.