The court-martial was modeled on those pitiless tribunals created by the Revolution. The statute declaring that any Frenchman taking up arms against his country was a traitor and worthy of death had never been repealed. The Consulate restored the activity of these military commissions in order to tame refractory conscripts and condignly to punish tamperers, conspirators, and spies. These courts had been accustomed to take their cue as to severity or leniency from the government for the time being, whatever it was. There was therefore but little difficulty in constituting such a body expressly for the punishment of any offender. In this instance none of the members except the president and judge-advocate knew the station of the accused. Préval, who had been chosen to preside, refused when he heard the name of the prisoner, on the plea that both he and his father had served in the royalist regiment named d'Enghien, and that he had therefore tender memories incompatible with the service required of him. General Hulin, an old-time Jacobin, made no excuses, and, understanding perfectly what was expected, was invited to report the verdict direct to the First Consul.
During these days Bonaparte had also constantly before him both the papers of the English minister at Munich and the inflammatory, untruthful reports of his police agents. He studied these, and reviewed the measures taken to guard the eastern frontier against the emigrants and their hostile sympathizers, who were making demonstrations in Swabia. Until the evening of the seventeenth he believed that Dumouriez had been at Ettenheim; but though informed of his mistake, the resolution already taken became iron, and the papers of the duke were read on the nineteenth with an evident determination to construe them into evidence of his guilt. They afforded no proofs of direct complicity with Georges, but they contained two phrases which, wrested from the true sense of the correspondence, were of awful significance--one in which the duke qualified the French people as "his most cruel foe," the other in which he declared that during his "two years' residence on the frontier he had established communications with the French troops on the Rhine." These were included in the interrogatories for the trial and intrusted to Réal for his use. If the duke were tampering with the loyalty of the troops, what need of proof that he was in any sense a participator in the plot?