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Phipps' Defence of Francis V, Duke of Modena
The following defence of Francis V, Duke of Modena (King Francis I), is taken from A Vindication of the Duke of Modena from the Charges of Mr. Gladstone, from Official Documents and other Authentic Sources, Selected and Revised, with an Introduction, by the Marquis of Normanby, K.G., (London: Bosworth & Harrison, 1861). "Marquis of Normanby" was the title used de facto by Constantine Phipps.Fifth Charge - Sixth Charge - Seventh Charge
. . . . It may not be without interest for an English reader to remember that the present Duke Francis V is by his mother the eldest lineal descendant of our kings of the house of Stuart, being the representative of Henrietta, sister of King James II, whose posterity were, as Catholics, excluded by Act of Parliament from the succession to the crown. Among the acts of the house of Brunswick few have been more generally applauded than the recognition, by our Kings George III and George IV, of the claims of misfortune and relationship in the person of the Cardinal of York, the head of the Stuart family. The only claim made on behalf of the Duke of Modena, the eldest of the lawful blood of our own exiled dynasty, is that we should not join his calumniators, nor lightly credit every wild story invented by his enemies.
The Duke of Modena has always been an advocate for the union of the Italian States in a Confederation which might give a legitimate direction to the feeling of nationality, and vert the danger by which Italy has been overtaken. As early as 1851 it was the Government of Modena which proposed to the other Italian governments the bases of reciprocal agreements, which, if accepted, might have been considered as the first sketch of a federal pact. But after various conferences and missions, and the exchange of sundry diplomatic notes, the proposal fell to the ground, and its only result was a convention of the five Italian States interested in the construction of the Central Italian railroad, a result of undeniable value, but insignificant when compared with the scope of the plans contemplated by the Duke and his Government. Under these circumstances it would seem almost idle to answer the question whether a government, of which this was the spirit and result, was or was not the regime of a tyrant. Nevertheless it is only proper that where charges are made by a British Cabinet Minister, they should be seriously entertained and satisfactorily answered. Some of them have been already discussed in the correspondence between Mr. Gladstone and the Marquis of Normanby, and therefore it is thought desirable to print this correspondence in Appendix A; but it is here proposed to proceed with these charges seriatim, and thus to meet first the first on the list, the transfer of certain criminals to the prison of La Saliceta. Now it is singular that this instance, adduced by Mr. Gladstone as his first proof of the Duke of Modena's bad government, and of the insecurity of his people as regards their personal rights, must be considered (if the opinions and recorded evidence of the most competent English authorities on the administration of criminal justice be allowed to have weight) as a proof that the government of Modena was in advance of our own, and had already effected those reforms in the treatment of criminal offenders of which we in England admit the desirability, but which we have as yet only partially adopted. Our own mode of dealing with criminal offenders approaches more and more to the Modenese system, as illustrated by this case of certain inmates of La Saliceta. Our Irish convict prison system, in praise of which so much has been of late said with so much justice, - our model prisons, our reformatories, and our industrial schools (concerning which we legislated in the very last session of Parliament), are all so many recognitions of the fact that we in England were behind the requirements of the age, and that the Modenese Government had outstripped us in the path of reform. Thus, before we proceed to ascertain the intent and bearing of the document which Mr. Gladstone converts into a charge against the Duke of Modena, we shall adduce as general evidence on the question the high authority of Mr. M.D. Hill, Q.C., the recorder of Birmingham. Thus, at the Birmingham Quarter Sessions, December 29, 1856, Mr. M.D. Hill delivered a charge to the grand jury, which made a very deep impression on the public. It was reported in extenso in the Times and other journals, and has been repeatedly referred to since. He treated in it of criminal punishments, transportation, and the ticket-of-leave system. He spoke of our advancement in the sciences and arts, the extension of our commerce, our widespread dominions, our high place among the nations, as subjects of honest pride and blameless gratulation; but he spoke of the cruel mortification which must be felt when we contrasted these testimonies of civilisation with the contempt and defiance of our civilisation manifested by our criminal population. "It will not be supposed," he said, "that I differ from my countrymen in their feeling of dissatisfaction at the present treatment of criminals. The evil is too flagrant to be denied."
"That the prison gate should be opened for the discharge of an
unreformed criminal is a misfortune to all parties, not only to the
community, but to the prisoner. Yet this is what we do every day
of the year. Every day are the officers of our gaols busied in
thrusting forth on the unoffending people of this country, men,
who, having been deprived of their liberty because they had used it
in a manner inconsistent with the safety of their neighbours, are
restored to freedom with the full knowledge of all concerned that
they will at once return to their old courses.
"Never let us forget that the evil under which we are suffering, is
the discharge among us of unreformed criminals.
"What we have to aim at is to prevent criminals, once caught and
convicted, from being so placed as that they have the power of
offending again, until we have some proof that their habits and
dispositions are changed for the better. And if the necessary
discipline in gaol to which they are subjected should fail to
produce this effect, then is it not unquestionably right that such
seclusion should continue, even if it last for life, such result
being the consequence of their own obstinacy in resisting
reformatory influences, or their own incapacity to keep in
subjection propensities incompatible with public safety. Ages ago
this island was infested with wolves - a dire calamity, as all
conversant with the history of those times well know - what should
we have thought of our ancestors if, after giving a reward for each
wolf captured, they had, when a certain number of years or months
had elapsed, opened their dens and restored them to liberty.
"Let me instance the case of Bavaria. Having heard and read much
of its prisons, especially those under the control of State
Councillor Obermayer, I have, through the kindness of our envoy at
the court of Munich, obtained from the Bavarian Minister of the
Interior full information on the treatment of prisoners adopted in
the dominion of his sovereign, and I find the plan which I have so
long advocated is there in actual operation. There is a class of
offenders imprisoned for an uncertain period, or in other words,
until, by good conduct, they have worked their way back to liberty.
But neither the Bavarians, or, so far as I know, any other
continental nation, expect confirmed criminals to be reformed in
three or four years, consequently they are kept a longer period,
advancing themselves, however, by progressive stages, from
treatment in which they are debarred from every indulgence, to a
manner of living not destitute of considerable enjoyment."
So far, Mr. M.D. Hill; and now let us ask what was this "other prison" to which Mr. Gladstone says the Duke of Modena ordered the batch of 254 criminals to be transferred. The document referred to by Mr. Gladstone is to be found in vol. ii, part iii, sec. i, pp. 3-4, of the Farini Compilation, as follows:
Now, what was this new house of correction at Saliceta? The house of correction at Saliceta is an institution copied from one of those very Bavarian models which Mr. M.D. Hill proposed for our admiration. The present Duke of Modena is married to a Bavarian princess, and having had occasion to observe in Bavaria a kind of compulsory workhouse for the correctional and preventive reclusion, by the authority of the police, &c., his Royal Highness resolved to found in his own States an establishment similar to the Bavarian model of which he had observed the excellent organisation and the salutary social results. The Duke therefore founded this compulsory workhouse of Saliceta as a prison of correctional police. It was an establishment which any country might well be content to copy. There was a cloth factory in it for the use of the army; trades were taught in it; pay was given to the reclus for their work, so that on their liberation they might leave with some funds in hand. they had their hours of work, of silence, and of recreation, and the regime was so humane and good that the mortality was only one per cent per annum, being less than the average mortality among the troops in the remarkably excellent barracks of that country. But for whom was this house of correction intended? What description of persons were to be confined in it? Rogues and vagabonds were to be confined in it. Persons already convicted of offences, and therefore known to be bad characters, were to be confined in it. Long previous an older house of correction had existed in the citadel of Modena, but from the opening of Saliceta the later became the only house of correction for males in the Ducal States. It will be observed that the Ducal decree is addressed "Al Buon Governo." Now this Buon Governo in Modena is the Department of Police. It was regularly organised in three magisterial grades, with graduated appeal; but the jurisdiction of these police magistrates is not to be confounded with that of the criminal courts of the country for the punishment of felonies and grave offences. Their jurisdiction was correctional, and for the preservation of order. The very fact that the Ducal decree was addressed "Al Buon Governo," for the transfer of these 254 prisoners to the new house of correction, implies that they were not individuals who had been tried and sentenced under the criminal code of the country, but "malviventi," vagrants, rogues, and vagabonds, whose case had fallen within the correctional jurisdiction of the police magistrates, and whose detention was either preventive or reformatory. Now let us turn to Mr. Gladstone's accusation, and see how he extorts a charge of tyranny against the Duke of Modena out of the decree which we have already cited. Mr. Gladstone says - "The first document which I shall cite was written in 1853, a time of profound peace. It does not mention whether the persons referred to were criminal offenders, but I have no doubt that they were." This is an arbitrary assumption, and we note that it is so before proceeding to the imputation which follows. Thus we learn from Mr. Gladstone's speech, which appears on page 9, what his notion of this transaction really was. He conceived that the Duke of Modena had done what our Queen, Lords, and commons would have done if they had passed an Act of parliament last session ordering that all persons now under sentence of imprisonment, whose imprisonment, according to the sentence under which they were in durance, would expire on or before the 31st of December, should be sent to a house of correction, and should not be set at liberty until they had given signs of reformed conduct and learned a trade. If such an enactment had been passed with a prospective operation, it would have met the views and carried out the recommendations of our most enlightened law reformers, but it would of course have been open to objection to give it a retrospective operation, and so subject criminals, who had satisfied public justice by undergoing their punishment, to fuller penalties by an ex post facto law. This, it appears, is what Mr. Gladstone believes the Duke of Modena to have actually done. He does not say that it was not a very good thing for the offenders to be detained till they showed signs of reformation and had learned an useful trade. He does not say that it was not a very good thing for the inhabitants of the Duchy of Modena that the dangerous classes in the community should be so treated, but he denounces it as an infraction of the personal rights of those offenders, who, as he believes, were entitled to be set at liberty upon a given day, and whose liberty he conceives to have been curtailed by an ex post facto law. In all this, however, Mr. Gladstone is mistaken. By the decree in question the Duke of Modena was not depriving of their liberty those who were entitled to it. The Duke was only directing the application to those persons of a law which existed before the offences were committed, and was ordering that a measure should be applied to them individually, to which all persons in their case were liable by the law as it had already stood for twenty years. In the very volume used by Mr. Gladstone against the reigning Duke of Modena there is a document (vol. ii, part iii, sec. i, p. 40-41), which proves this. It is a direction, dated April 15, 1833, signed by the then reigning Duke, and addressed "Al Ministero di Buon Governo," concerning persons guilty of faults punishable by the department of Buon governo (delitti di contravenzione), in consequence of which it was enacted -
This decree of Francis IV of Modena, in 1833, is very much in the spirit of Mr. M.D. Hill's charge to the grand jury at Birmingham quarter sessions in 1856. It is very much in the spirit of one of the propositions submitted to the Law Amendment Society (of which Lord Brougham, a critic of the Duke of Modena, is president), reported in the Times of December 17, 1856, when Mr. F. Hill read a paper, entitled "The means of freeing the country from dangerous criminals," in which he advised that magistrates should have power to cause any suspected persons to be brought before them, and to demand to know their means of living, and in case the person brought before the magistrate should be unable to show that he obtained a living by honest means, that he should be committed for trial, the proof of innocence being thrown upon him, the suspected person. It is identical in spirit with the 271st clause of the Code Penal of France and Belgium, Book iii, Tit. i, S. 2, on Vagabondage, which enacts that vagabonds, or persons without calling, who shall have been legally declared such, shall, on that account alone, be punished with from three to six months' imprisonment, and shall remain, after having undergone their punishment at the disposition of the government, during the time that it shall determine, regard being had to their conduct. But the quarter from which, in 1833, the former Duke of Modena derived the rule, was probably the Austrian Correctional Police regulation. The 8th rule in the provincial house of forced labour in the city of Prague is a specimen of the system generally carried out in such places. "No inmate of the house shall be released before he has given sufficient proofs that he has improved and has inured himself to labour, so that it can reasonably be expected that he will occupy himself in some honest calling." What we, however, for the present are concerned to not is, that for twenty years, by the law of Modena, very noted evil-doers, habitual offenders, persons "well known to the police," persons who, in the language of our police reports, had already often "appeared before a magistrate," if already in arrest, were liable to have their liberty withheld until they had learned a trade; and the Duke's order of May 22, 1853, merely directed that those offenders whose punishment by imprisonment expired within the year, and who, if then liberated, would lose the benefit of the new correctional institution, should have applied to them the regulation provided for such persons by the law of April, 1833. Thus the facts of Mr. Gladstone's case, like his inferences, were mere hasty assumptions, and there is not a shred of imputation remaining upon the Duke upon this point.*
* Before quitting the subject we will cite a letter from a ModenEse
authority, giving a general sketch of the circumstances which
induced the proceedings in question, and of the consequences which
followed.
"With respect to the accusation of arbitrary detentions, it must be
borne in mind that the question was to adopt measures of public
security which were really invoked and demanded by the public.
Except in tranquil and gentle Tuscany, not only is crime frequent,
but it is difficult to obtain convictions. Witnesses stand mute
out of fear of the poignard, or from the common italian prejudice
that giving evidence on a trial is to play the spy (far la
spia). The judge in such a case, however courageous and
active, cannot convict or sentence the accused. For this reason,
in the old Estensian Code, there was a provision that, in case the
technical proofs were imperfect, the judge, if his own belief in
the prisoner's guilt amounted to a moral certainty, might inflict
a punishment, which, according as the evidence against the accused
was strong and his character bad, might approach the ordinary
penalty more nearly, or fall further short of it.
"Following the precedent of all modern codes, the present Duke of
Modena thought proper to abolish this discretionary right in the
judges, and to leave them only the power of applying the ordinary
penalty in cases of conviction, or in case of incomplete technical
proof to release the accused, leaving the trial open. In this
latter case the accused were handed over by the judges to the
police authorities, who were to take suitable measures for their
surveillance. For certain individuals, incorrigible
thieves, old offenders, against whom there was strong
circumstantial evidence, and who could not prove that they had any
lawful means of subsistence, it had long been an established rule
that the police should have them taught some trade in a house of
conviction, and detain them there until they had learned such
trade.
"The Government was led to insist on the observance of this rule by
frequent public deputations which waited on the Duke to complain of
the laxity of the police administration, and to implore the more
vigorous enforcement of the law. Experience had shown, as these
deputations pointed out, that as long as a certain set of notorious
'rogues and vagabonds' were in confinement, thefts, assaults, and
offences very seldom occurred, but that the restoration of these
individuals to their liberty was the invariable signal for the
recommencement of offences.
"As for the consequences of the measure, they were in the highest
degree satisfactory to the population, and the absence of thefts
and offences proved that the Government had not been misled in its
adoption of a remedy."
Subsequent to the above proceeding, on the 12th February, 1854, the
Duke promulgated a new police regulation for his States, which came
into force on the first of May following. By this regulation the
powers of the police magistracy were regulated, defined, and in
some respects, extended, so as to relieve the ordinary tribunals of
all the pettier classes of offences, and provide for the speedy
decision of the minor offences. Their jurisdiction extended to
petty thefts of sums not exceeding ten Italian life for culprits of
full twenty-one years, or of twenty Italian life for persons under
that age. A slight penalty was appointed for the first theft, for
the second and third relapse it was doubled and trebled.
"For the fourth theft the condemned shall be sent to the house
of correction without a predefined term, until he be amended and
have learnt a trade proper to gain his livelihood.
Similar provision is made in case of inveterate incorrigible
vagabondage, when the offender is to be "sent and kept in the
house of correction for an indeterminate time, that is, until he
shall have given proof of improvement (ravvedimento), or
have learnt an art or trade calculated to procure for him an honest
sustenance."
The diminution of criminal prosecutions which took place between
1853 and 1856, as appears from the official returns of the latter
year, was as follows: -
1853 . . . . 2770 The second charge is that which was more particularly the subject of the correspondence between Mr. Gladstone and the Marquis of Normanby. In its first shape it amounted to an odious accusation, which, it is not too much to say, stung to the very quick one so scrupulously just and high-minded as the Duke of Modena; for it imputed to him the atrocity of issuing an edict for the execution of a certain criminal, one Granaj, who could only be rendered capitally amenable by the application to his case of an ex post facto law. "If this were true," said His Royal Highness, "I should feel myself morally guilty of murder." It was not true, however, either in letter or spirit, or indeed in any sense, for Granaj was not executed. There was no intention of executing him, or of giving to his or any other case an ex post facto application of any penal enactment; nor was there, in fact, any edict whatever affecting him, for Mr. Gladstone made a grievous blunder upon this point, and betrayed a strange reluctance to acknowledge it even when it was pointed out to him by the Marquis of Normanby. Of this charge in its first shape his correspondence with the Marquis is the best refutation*; * In addition to this, however, it may be as well to add the explanation given by a gentleman conversant with the legal bearings of the document on which Mr. Gladstone founded his charge; for, as this writer observes, the very text quoted by Mr. Gladstone itself suffices to refute his calumnious assertion. In short, the alleged order for the execution of Granaj resolves itself into this: that, whereas Granaj, though guilty of deliberate murder, could not be executed, the Duke took occasion to remark thereon, and on the increasing frequency of this class of crimes, and prescribed, therefore, that for the future, in the draft of the new code, such criminals should be made capitally punishable, though they had not attained the age of twenty-one. The Duke's order had reference to future cases only; for, as His Royal Highness observed in his letter to Lord Normanby, had this been otherwise, it "would have been giving retrospective force to a law injurious to the criminal, and therefore an act absolutely to be reprobated." Mr. Gladstone did not admit how completely he had misread the document and misconceived the intentions as well as character of His Royal Highness; but every one who peruses it will now perceive that there is not the shadow of a pretence for his original accusation. and it may be observed that all the lighted candles of the Modena Commissioners did not save him from misreading even their garbled documents. For that most grievous charge was the pure creature of his fancy, and in his own hands it evaporated. Yet Mr. Gladstone, refuted, was unequal to the duty of rejecting it as untenable. Like one of his Homeric acquaintances he was embracing a cloud, yet he would neither desist nor allow others to convince him of the utter unsubstantiality of the seductive illusion. This phantom, which he had animated by his own brilliant imagination, passed, like any other cloud, through a succession of transformations, till, in its last stage and shape, it amounted to this, that "capital punishment was made applicable by an ex post facto law in the dominions of the Duke of Modena in 1857 to youths charged with homicide." The case of Granaj, which belongs to the date of 1855, was thus entirely abandoned, though there are discrepancies on this point between the statements of Mr. Gladstone and his defender, Lord Wodehouse, in the House of Lords. Mr. Gladstone, however, was unwilling to sacrifice his illusion that at some time or other sentences were passed upon criminals in pursuance of an ex post facto law, the application of which was enjoined by the Duke. It is therefore to the substance of his accusation, whatever its form, that a denial is intended; and this denial will be sustained by an explanation of the documents, and by a narrative of the facts which from first to last he has so resolutely misapprehended. Let it be premised, then, that the documents which bear upon the case are connected with a chain of occurrences to which it is essential to make some preliminary allusion. The correspondence which is contained in Appendix B, on the part of Lord Normanby, Count Cavour, Lord Malmesbury, and Count Forni, contains references to the fact of a difficulty which had arisen; and they are pretty explicit also as to its nature. Conspirators of many years' standing (there was at least one such in Italy) had imported into the Duke's dominions from without, or rather into a certain small convenient section of them, a secret and organised system of conspiracy, which manifested itself in a series of atrocious murders that spread terror among the peaceable inhabitants who were not actually themselves its victims. It is not too much to say that if revolutionary propagandism was its avowed source, private enmity availed itself of this pretext for its purposes. The league of the conspirators, the contiguity of Piedmont, and the certain sanctuary assured to the assassins, rendered murder easy, tempting, and above all safe. Furthermore, the assassinations thus liberally encouraged afforded political capital to Piedmont, which, in virtue of the very atrocities it abetted, took occasion to reflect on the Duke's government, and incessantly deplored through its public journals the crimes of which it was both the accomplice and protector. These crimes took place only in a district on the Piedmontese frontier, and Piedmont sheltered the fugitive murderers, violating for that purpose the solemn engagements of extradition treaties. Up to a certain date this district of Massa-Carrara was free from bloodshed, and the inhabitants were earning an easy subsistence by honest labour, for which their quarries and marble works afforded them ample facilities. "But about the year 1850" (we are quoting the statement of a gentleman thoroughly conversant with the particulars) "there came to Carrara a certain Giovanni Calzolari, who was called the old Genoese, 'il vechio Genovese,' a man aged about fifty, a native of Lerici, and whose previous life had been of the worst description. He sought to gather round him youths of bad habits, and, alleging that he had a mission and support from Piedmont, he told these young men, and subsequently others of better qualities, that there was a society in Piedmont which rendered all who belonged to it happy, and which he recommended and invited them to join. He said that this society tended to the introduction of constitutional government, which was of great benefit to all persons; and in order more effectually to seduce the rude race who laboured in the marble quarries, he gave them to understand that under such government people only worked two days in the week, and received a crown per day notwithstanding for the other five. Some of these simple creatures readily believed him. Those who had a distaste for labour especially acquiesced in such a promising scheme, and agreed to belong to such an admirable society. Calzolari thereupon began to enrol and affiliate them by an oath taken upon two crossed daggers, 'to slay priests, cardinals, sovereigns, father, mother, brothers, and sisters, and whoever else was opposed to constitutional government.' He taught his adepts secret signs an passwords by which they might know one another, and he inculcated upon them the obligation to slay without ado any person whom they knew to be well affected to the government of the Duke; for which purpose he instructed them in the surest way of surprising their victims, explaining in what parts of the body, and especially the neck, they should plant the blow, with other accomplishments of this description, which, according to modern Italianissimo doctrine, smooth the road to true prosperity and honour. He bound them all to render each other mutual help and succour, and insisted upon imposing the penalty of death upon any who should reveal the secret, and also upon any person who when charged by a superior to kill should not punctually carry out his commission. Calzolari saw this society, which he had founded, grow and flourish, for he had made it an obligation of the members to affiliate every one they could, either by persuasion or violence. In order to make proselytes, therefore, these villains began crying down and menacing the unenrolled, calling them the blind ('ciechi'); and some out of curiosity, and some from fear, and some tired of being the objects of surveillance, and some tempted by the promise of advantages and of a life of light labour, caused themselves to be affiliated. Even men who refused were coerced to form part of the society, being taken unawares, and brought into taverns under pretext of supper, where, with armed hand, they were forced to enrol themselves and take the abominable oath. Being a rude people who lived in the highlands, and among the marble quarries in solitary places, it was easy to spread among them such a sect, so that, within a brief space, Carrara and its neighbourhood were full of adepts, some of whom were in the habit of going from time to time into the neighbouring Piedmont for better instructions, while divers missionaries also came thence to inspect and encourage the new plantation. This is enough to explain what a sect and conspiracy was there on foot, while the murders that occurred there were entirely its fruits. At length the assassins attained to such effrontery, that they committed the most horrible crimes in cold blood, in the public squares, in the midst of the people, and in broad daylight. For they knew as well as the best diplomatic conspirator of may years' standing, that on reaching the Piedmontese territory they would receive protection in spite of the treaties for the extradition of criminals that existed between the States of Modena and Piedmont. In proof of this, I need only allude to the five assassins who, having with their daggers treacherously slain in the public streets of Carrara in the broad day of the 27th September, 1857, at four o'clock in the afternoon, three men, viz. Ribolini, Zeni, and Rocchi, took refuge immediately in Piedmont, where they found the aid they expected, and all demands for their extradition were notoriously made in vain. To such an extent did this murderous combination affect the neighbourhood, that the town of Carrara, its centre, was dreaded by travellers, so that the works of its sculptors remained for years unsold in their studios, at no small loss to them and to the rest of the population, who previous to this time had participated in a common prosperity." Moreover, the number of murderous crimes was so considerable in proportion to a very limited population, that some forty of them had occurred previous to the date at which the Duke, finding the ordinary tribunals powerless, put the district by proclamation under martial law.* * Mr. Gladstone spoke with deceptive vagueness of this occurrence, describing that state of siege as having been "proclaimed in Modena," as if it had extended to the whole 600,000 inhabitants of the Modenese States; whereas that state of siege was confined strictly to the city and commune of Carrara, which contained a population of only 15,550 - that is to say, little more than a fortieth of the Duke's subjects. This narrative of the state to which Carrara was reduced by a sanguinary conspiracy is a necessary explanation of the state of siege which followed, and it might well justify the Duke in taking measures of extraordinary severity, if there was the least pretence for asserting, as a fact, that any such measures could be ascribed to him. On the failure of all the ordinary tribunals and of a military commission to repress this system of wholesale assassination, the state of siege was proclaimed; but it was practically mitigated by such remarkable clemency and by such a very peculiar modification of its conditions, that the charges which have arisen out of them may be simply regarded with derision. In the vast majority of cases the introduction of a state of siege is a measure of extraordinary rigour in its operation, and those who are subjected to it are condemned ordinarily not only to the jurisdiction of military tribunals, but to the summary penalties of an exceptional code. Let us see what the state of siege, then, meant in this instance, and how it was specially interpreted and qualified by the Sovereign whom Mr. Gladstone, with astonishing perversity, has persisted in representing to the world as a tyrant. The state of siege, restricted, as we have said, to the city and commune of Carrara, was formally notified on the 6th October, 1857; and on the 7th October the Duke issued the decree which is the subject of Mr. Gladstone's accusation in the last form of error which that Proteus assumed. "Whosoever," says the Duke, "is found guilty of assassination may be condemned to the capital penalty even when under the age of eighteen years." And here Mr. Gladstone assumed, though the case of Granaj had broken down, that he had found a warranty for his later statement, that "capital punishment was made applicable by an ex post facto law in the dominions of the Duke of Modena in 1857 to youths charged with homicide." He will now learn, it is to be hoped, with due penitence for his persistency in a charge so unjust, that this decree of the Duke was ex post facto in no sense, but was simply declaratory of the existing law. The exact bearing of this decree is explicitly stated in the subjoined note*, which is derived from the statement of a high Modenese official, and it will be found utterly to exclude the interpretation which Mr. Gladstone, too eager to sustain his accusation, has put upon it.
* "I proceed to furnish you with the explanation that you ask from
me respecting the alleged order of the Duke 7th Oct. 1857.
"Our civil code, like the French code, lays down that 'a
minor is a person of either sex who has not yet attained the full
age of 21 years.' But emancipation, which, according to the
Code Napoleon, may take place at the age of 15 can only
take place with us when the minor has attained 18 years. For this
reason, in various provisions of the code, the age of 18 is often
indicated and chosen as an intermediate term.
"The new criminal code, however, which came into force on
the 1st May, 1856, after fixing the penalties and their gradation,
ordains that in general the minor between the ages of 18 and 21
shall be punished with a degree less than the ordinary penalty,
except in cases of sacrilege or of high treason, or of
parricide, infanticide, poisoning, premeditated, or treacherous, or
insidious slaying, or, finally, of assassination, in which cases he
was liable to capital punishment. You see that in making these
exceptions, in which the minor was placed on a par with persons of
full age as to the application of penalties, account had been taken
of the reflections which had occurred to the Duke on the occasion
of the sentence of Granaj. But the same criminal code, in its
articles 55, 58, and 59, laid down also that a minor who had not
attained 18 might be, according to the discretion of the judge,
punished with the same penalties as the law applied to minors of
18, if the degree of malice of the accused, or the other
circumstances of the crime, required it. It follows, therefore,
that the direction, or I should rather say the explanation,
contained in No. 2 of the alleged sovereign rescript of 7th
October, 1857, would be in perfect harmony with the existing law,
which assigns the penalty of death to minors of full 18 years, and
grants to the judges a power of applying it also, according to
circumstances, to minors who have not yet attained those years. It
must not be omitted that the word potra, i.e.
may, is not an injunction, but an expression which, in
accordance with the code, leaves and allows a discretion to the
judges to apply capital punishment in cases such as those
contemplated. Some one may object that if the code contained the
provision, there was no reason for recurring so the sovereign to
obtain such an authorisation; but the answer to this is, that,
inasmuch as the new criminal code had only been in force for about
eighteen months, its application was not so clearly established by
practice as to render it unnecessary to have recourse to the
legislator to obtain an authentic interpretation of it. It may
even be that military judges may have raised upon a matter which
was not quite of their habitual ressort, doubts that any
other competent authority would not have raised. Be this as it
may, whatever was the cause of the rescript, it is quite evident
that the direction which it contains in no respect alters the code
or aggravates the condition of the condemned in the face of the
law." Moreover, it ought here to be added that the five singularly
atrocious and confessedly guilty murderers who alone suffered death
during the Duke's reign had all attained the full age of 21 when
their crime was committed. Two more murderers who were sentenced
to death, but whose penalty was commuted, were also 21 when their
crime was perpetrated. Many minors were convicted of murder, but
sentenced to mitigated punishment, not to death.
On the other hand, his further complaint that by another clause of the same decree it was provided that soldiers should be specially qualified to appear as witnesses in the case, is no doubt borne out by the terms of the decree, to the effect that both military and police should be competent to give evidence. But how strange is this complaint from the minister of a country where such persons are qualified to give evidence at all times; and how specially unreasonable is it to complain that being, as they were, competent already before the ordinary Modenese criminal tribunals they remained competent witnesses, in a state of siege, in dealing with a secret and widely ramified conspiracy, which, by threats of murder and by actual murders without number, had rendered the evidence of every other witness almost unattainable! Mr. Gladstone has again misstated the fact, for instead of such witnesses becoming specially qualified by means of the Duke's decree of this date, they were already so qualified by a law which had come into force as a provision (S. 1, Art. 551) of the New Code on the 1st of May, 1856, and of which the magistrates were reminded by circular, issued, in accordance with a direction of the Duke, on the 16th January, 1857, that is to say, about nine months previously. And as our attention is here directed to this code, and its special provisions respecting the competency of witnesses, we may observe that it does exclude, by Art. 138, the evidence of "informers and complainants (querelanti)," who "can never be heard as witnesses except at the instance of the accused." When no such exception would have been tolerated in England for a moment, when no such tenderness for criminals is exhibited in this country, it is somewhat strange to find an English minister imputing cruelty to a foreign sovereign who, in deference to a very questionable prejudice, deprived himself of this legitimate means of bringing such criminals to justice. In short, in answer to such charges the sole course of the Duke's dealings with Carrara might be cited, but especially we ought to call attention to a decree of the date of the 22nd December, 1857, in order to show the general tenor and spirit of his intervention, and especially to denote the scrupulous humanity with which he provided that the milder of two penalties should be invariably applied there, even when the state of siege might be supposed to imply the very contrary. Up to the 1st May, 1856, the old local statutes of Carrara had been in force there; but on that day the new Modenese criminal code (Codice Criminale Estense) had come into force; while the state of siege commencing the 6th of October, 1857, had complicated this confluence of laws with the methods of procedure adopted under the Modenese military code (Codice Militare Estense). To determine, and not less to soften than to determine, the application of these discrepant enactments, the Duke issued his decree of December, 1857; and this, with the annexed annotations of the Judge Advocate Gentili, who presided over the Commission, shall be the close of our reply on this point to the Duke's calumniators. As, however, the entire document is too length for insertion here, we refer our readers to it in extenso in Appendix C. The third charge, or rather the third and fourth charges of Mr. Gladstone, appear to have arisen out of the cases of certain criminal offenders which were submitted to the Duke contrary to his injunction and desire. The third charge, even in the language of Mr. Gladstone, is not very serious, or suggestive of very terrible tyranny; for it amounts in its most hostile form of statement only to this, that Mr. Gladstone found the Duke was "nauseated" i.e. disgusted, by reading three judicial sentences, and that his reason was that the crimes were so lightly treated that the punishments were worth nothing at all. Secondly, as Mr. Gladstone puts it, the Duke was even more nauseated by finding that previous good conduct had been alleged on the part of the criminals; to which we must ourselves add, by way of caveat to Mr. Gladstone's accuracy, that the document so interpreted has been recklessly misread by him, for the Duke makes no such frivolous complaint, though he does object that the previous good conduct of the criminals is permitted to qualify the very nature of the offence with which they are charged. We recommend Mr. Gladstone again to consult the original, which is inconveniently long for insertion in extenso here; and in the mean time we will ask to what, divested of its fanciful trimming, does the remaining substance of his charge against the Duke amount? If the Duke was disgusted with the conduct of certain judges, it is surely important to know whether he was so with or without reason, before his disgust is condemned and held up to public obloquy. For the expression of his disgust, by the way, the Duke is not responsible, for the judges in question directly invited it by referring to the Duke these very cases, as we said, contrary to his injunction and desire. "It is entirely against our wish," says this very document, "that sentences passate in giudicato," that is to say, for which the time of appeal has expired, "should be submitted to us; and should this happen again we will dismiss any judges who may adopt such proceedings (avessero agito in tal maniera)." The cases having nevertheless been submitted unsought for, he concludes by deciding that "the Ministry of Grace and Justice shall ordain the revision of such of the causes now presented to us as are passate in giudicato, we not being tranquil in our conscience that justice has been done." The revision even then contemplated was that of the ordinary tribunal, to which up to a certain date an appeal would have been en regle, and to which he still allows an appeal to proceed, in consequence of the irregularity of the judges in thus referring these cases to himself. The reasonableness of his disgust, which is really the very substance of the question, should fairly be considered apart from its expression, which was, as we have observed, all but obligatory. It is impossible to cite here all the evidence which would prove that it was reasonable in a very emphatic sense; yet it was notoriously the fact that for a long time previously the judges of Modena, as a body, had been shamefully lax in the performance of their judicial duties, - that is to say, they had almost invariably imposed the minimum of punishment, whatever the atrocity of the criminal; they had ascribed more effect to circonstances extenuantes than the most sentimental judge of a French department; they had protracted criminal processes with a dilatoriness which would have startled even the unreformed English Court of Chancery;*
We have an instance of this in a case on which (7th Nov. 1851) the
Duke is consulted by the authorities respecting the appeal in the
third instance (for revision) by an assassin who had already been
condemned, as well in first instance as on appeal, to fifteen
years' galleys, for having, on 29th June, 1847, beaten to death
with a club a Royal Chasseur, in order to rescue a prisoner from
his hands; and the Duke, upon this official report of a petition
from the criminal for a respite in order to claim a revision,
writes, under date 7th Nov. 1851: -
"That he requires to examine personally the whole process, in order
as well to ascertain why the trial was dragged on for more than
four years, and in order to see whether the tribunals, in
their propensity to laxity in punishing grievous crimes, have not
been lax in this instance, where he sees no possible extenuating
circumstance, the assassination being combined with an outrage on
public authority, and committed upon a soldier who was simply in
the performance of his duty." In another instance we find the
Duke, on the 22nd of June, 1855 (misprinted by the Commissioners
with the aid of all their candles, as 1852), remonstrating on the
subject of another criminal process for burglary and murder which
had already taken five years to reach the decision of
First Instance, and on which the Duke recommended a little more
diligence in the subsequent stages.
and finally they had, in some most discreditable instances, allowed the machinery of justice to miscarry altogether. We have grounds for asserting that the Duke had the gravest occasion for the censures he expressed in such plain and indignant language, in what however we must remember was a quasi private and as it were interlocutory communication to his Minister of Grace and Justice; for the facts were literally as he stated them in that confidential communication. For a long time past, every crime of a grave character had escaped its merited penalty, the penalties in other cases were more or less heedlessly mitigated, and the law as administered had few terrors for the guilty, and was totally inadequate for the protection of society. The convictions of the Duke upon these points were shared by the Modenese public, who were incessantly complaining of the impunity of crime, of the inertness, the slowness, and the inefficiency of the judges, and of the evil influence of their laxity upon public morality. In some cases where they did pronounce judgment of condemnation after a long protracted process, such, we are told, was the effect of their dilatoriness, that the public had almost forgotten both the crime and the criminal, and the moral effect of the sentence was all but obliterated. In short, the Duke was required to interfere by complaints upon all sides, and had he been inclined to allow his judges to neglect their duty, all the respectable inhabitants of his duchy were ready to remonstrate to the same effect.* * The English reader, accustomed to the zeal and integrity of the judicial functionaries in his own country, and cognisant of the unimpeachable manner in which they perform their several duties, will have a difficulty in understanding the inveterate laxity of the Modenese judges, and their tendency to divest themselves of their proper responsibility. The fact was so nevertheless, whatever may be its imputed cause, and the Duke was incessantly endeavouring to provide remedies. As the proceedings in the law courts were habitually protracted by their extreme dilatoriness, the Duke introduced, together with his new civil code, a new system of procedure, entailing, moreover, publicity in its most important stages, with the intention that the judges might be encouraged and stimulated by the knowledge that the public was observing them. Whereas, too they had been previously paid by fees from the contending parties in civil cases, the Duke increased their dignity as well as their income by assigning them a fixed salary, and rendering them independent of the suitors to their courts. In fact, the budget was more heavily increased in respect of these judicial reforms than of any others, and yet, as it proved, without corresponding advantages. Thus the judges continued to be languid and lax, partly, no doubt, from constitutional indolence, and partly also from a morbid resentment of the rebukes which the Duke, upon the vehement outcry of his subjects, was compelled to address to them. Thus they suffered almost any consideration to outweigh the force of positive law, and acted generally as if they had a motive and design to bring the whole administration of the law in Modena in contempt and confusion. In fact, there was reason for regarding them as the most disaffected class in the Duke's dominions, though even with them the Duke was so comparatively gentle that during his whole reign he only dismissed two of them, one for positive incompetence of the clearest kind, and one for a secret and seditious correspondence. It would have been better, perhaps, if he had been more stringent still, for their conduct on the occasion of the assassinations in Carrara showed that incompetence or disaffection was by no means confined to two of them. Although nearly forty assassinations had taken place there, not one of these was brought home to the criminals by the ordinary tribunals, though the military commission which followed, at the urgent solicitation of the inhabitants, speedily pacified and tranquillised the district. The event proved that many of them were accomplices of the revolution, and devoted to Piedmont instead of to the sovereign to whom they had sworn allegiance. It was men of this class who afterwards sat in inquest on the Duke, and furbished up the discoveries of the Modenese Commission, with all the more zest, perhaps, that they longed to retaliate the rebukes he had justly addressed tot hem for their notorious neglect of duty. In the very case of the woman Libbra, acquitted of infanticide after a protracted and faulty process, this public opinion manifested itself in condemnation of the miscarriage of justice, and circumstances were brought to the knowledge of the Duke which occasioned the remarks on which Mr. Gladstone founds his fourth charge, that the Duke ordered her accomplice, Felice Libbra, to be still detained in prison, after his term of imprisonment had expired. Let us meet this charge once for all, and let us meet it promptly and plainly. It is pure moonshine. Mr. Gladstone has mistaken an expression of the Duke's disgust for a direction in the case. The Duke was disgusted; and there is nothing further in the document to warrant the positive assertion of Mr. Gladstone.* * We cannot resist the temptation to remind the reader here of the very terms of Mr. Gladstone's commentary: - "In this case the judges were rebuked, and a new trial was ordered. I do not wonder that a smile of incredulity passes over the lips of honourable gentlemen. It ought to do so. (Hear, hear.) It would be wrong that in this age, and in this part of the world, one should be too ready to believe that such things could take place. (Hear, hear.)" Could we leave Mr. Gladstone a more unwelcome monitor than the reminiscence of that sentiment, so expressed, and so emphatically sanctioned by the cheers of his followers and friends? Mr. Gladstone's fifth charge is founded upon a letter which he again erroneously terms an edict, and in which he states that the duke, writing to one of his ministers, describes his affliction relative to the cases of some criminals entitled to the operation of a mitigating law, and declares that the mitigating law shall not be applicable to their particular crime. The answer to this is as simple as the answer to the last charge; Mr. Gladstone has again misstated the facts, for instead of the criminals in question being entitled to the benefit of such law, this law was framed subsequently to the commission of their offence, and neither had nor was intended to have any reference to them. It was subsequent to the commission of their crime, on the 1st of May, 1856, that the new code had come into operation, and the judges assumed that this code affected the criminals retrospectively, without any words warranting this forced interpretation, and solely on the ground of gratuitous hypothesis. Thereupon, that is to say, in the following August, the Duke made his comment on this judicial absurdity, observing that the law had been applied retrospectively by mistake, that there was nothing on the face of it to warrant such application, and reminding the judges that it was their province to give effect to the law as it stood, without speculating on intentions, or making excursions of a theoretical nature beyond the limits of its letter and text. His rebuke might have been heard with perfect propriety in an English court of justice, supposing English judges could have blundered so egregiously; and it would have been recorded to the lasting credit of his good sense. But Mr. Gladstone seems to conceive that it was particularly harsh that the Duke should complain of the carelessness of his judges in giving a couple of malefactors the benefit of a law which was never intended to apply to their case. It appears, however, that their crime was one of unusual atrocity, burglary or highway robbery combined with murder, and the Duke naturally protested that this was not a crime of the class to which he had intended, even in the new code, to apply any mitigating exceptions; and, that moreover, had he anticipated such a judicial miscarriage, he would have said as much explicitly in the code, while for the future he was resolved to deal with the matter specially by a new enactment. At the same time, the only action which he took in the particular cases was to send them on in the usual course to the Tribunal of Revision. The document, which we subjoin*, and which Mr. Gladstone has so mistaken, is somewhat obscure in some of its bearings, from the impossibility at this time of ascertaining all the circumstances, and from the fact that it was also a hurried communication addressed by the Duke to his Minister of Grace and Justice; but such, our readers may rely, is its substantial sense, and such is the collapse of Mr. Gladstone's accusation.
* 1st August, 1856.
Caro Cocchi, - Running over the sentence you sent me, and the
dissent of the President Tassoni, here are my impressions and
resolutions on the subject: -
1. That the Tribunal of Appeal acted as advocate of the culprits,
and not as judge.
2. That it was not for the Tribunal to interpret my
intentions, which had been nowise expressed.
3. That it is neither humanitarian authors nor preconceived
opinions that should have force, but the law just as it
stands.
4. That, as the law made no mention of retroactivity, retroactivity
was not applicable.
5. That if, in publishing the Code, I had had in my mind the horrid
double assassination of Garimberti and Guzzoni, I would have
expressly declared that I did not admit of any retroactivity in the
Code to such a case; and I should have said so in order to prevent
the escape of two such villains (scellerati) from their
merited penalty.
6. That I do not understand how they save Contarini from death, and
in like manner Garuti, for the assassination of Guzzoni, at a time
when Garuti was more than twenty-one years of age.
7. That, for a stronger intimation that I would never have saved
villains like these from death, I declare that from this moment
forward I mean to extend the exception, enacted by Article 61,
Section 2, also to slaying in cases of highway robbery and
burglary.
8. That I moreover discover that this last-mentioned crime of
burglary is not specified in the Code, wherefore I will have it put
in every respect on a par with highway robbery, as you will see
from the accompanying sign-manual, by which I order you to draw up
and submit to me in this sense a decree to be inserted in the
bulletin of the laws, and which is to form an integral part
henceforward of the Code.
From all this I conclude, as you will see by our other definitive
decree:
1. That the Tribunal of Appeals has interpreted, without powers
from us, an intention of our rendering the law
retroactive.
2. That, therefore, I direct the Tribunal of Revision to review the
sentences of Garuti and Contarini and pronounce sentence (dare
sentenza).
Believe me, Your very affectionate,
(Signed) Francis
To the Minister of Justice and Grace
Mr. Gladstone's sixth charge is to the effect that the Duke improperly commended a soldier who fired upon the people of Carrara without having received orders from his commanding officer, and that he improperly rebuked or implied a rebuke of that officer for omitting to give such orders to his subtern. Now the essence of this charge consists in the assumption that the Duke was unduly disposed to rigorous measures, and that he favoured a man who complied with sanguinary inclinations, to the relaxation of the bonds of discipline and to the extent of a disregard for the lives of his subjects. The charge means thus much, or it means very little; and as it depends on the circumstances of the case to substantiate or disprove it, these shall be set forth at length as a clear and sufficient answer. It is material to observe the date of the occurrence in question, for it happened on the 21st of March, 1859, just before the Italian war broke out, and when martial law had been already proclaimed along the Carrarese frontier, the scene of the incident, on account of the hostilities impending and the gathering in the neighbouring district of Piedmont of armed "volunteers" for the invasion of Modena. Late on the evening of that day it appears that a patrol, commanded by one Preci, who was a mounted gendarme and not an officer, and consisting of six chasseurs, was proceeding south-west of Carrara along the road leading to Fantia and Avenza. At a place called Panteccinato, they fell in with a group of above fifteen persons, who, notwithstanding the state of siege or martial law had been proclaimed there, were uttering seditious shouts and singing revolutionary songs, to the disturbance of the neighbourhood. They were summoned by the patrol to desist and disperse, and this summons was distinctly addressed to them three several times, according to the legal obligation in such cases, which corresponds with the English practice in the case of ordinary riot. This summons, however, was met with derision and answered by a shower of large stones. The chasseur Bisetti, being the eclaireur in advance of the rest of the patrol, of course incurred the greatest risk, and as the stones were flying about his head and the crowd was advancing upon him, in his own defence and that of his comrades he fired at the mob, causing the death of a certain Ceruti, of S. Ceccardo, and the hasty flight of the rest, none of whom were wounded, though Mr. Gladstone has stated that they were so. This unfortunate occurrence was briefly referred by telegraph to Modena; and in the absence of the details it seemed that the Chasseur Bisetti had acted rather precipitately, whereupon the Duke, to whom notice of the event was given, on the very day following the occurrence, the 22nd of March, by an autograph decree, directed expressly that there should be a regular inquiry into the case (with a view to a criminal prosecution), as to whether and wherefore the chasseur fired without command of the chief of the patrol, and whether, when he fired, the patrol was really menaced by a superior force of seditious rioters; and if such extenuating circumstance could not be shown, the Duke further directed that the person who fired without orders or due cause should then be brought to punishment. Furthermore, the Duke took this occasion to impress upon the officers the necessity of giving more careful instructions to their men to follow precisely the words of command. He warned the non-commissioned officers to keep the men under them in strict order and discipline; charged them to endeavour to arrest those who might offer resistance; and if this could not be done, to disperse them by the use of their side arms; and they were never to use firearms except when the troops should be assailed with arms or stones, if possible, without previous instruction. Such was the Duke's sanguinary interpretation of the conditions and obligations of a state of siege. The result of the inquiry made it clear, however, that Bisetti was compelled, under the circumstances, to make use of his arms to save himself and the patrol from being overpowered; so that the Duke hastened to declare, by another decree, of the 25th of March, that he considered the attack made upon the patrol with stones fully justified the use of arms; and that he only considered it irregular that a private should have taken upon himself to use his arms in the presence, and without the orders, of the chief of the patrol; adding that, taking into consideration the positive attack made upon the patrol, he did not hold the soldier punishable; and observing that, perhaps, the chief of the patrol merited reprehension for having induced the spontaneous act of the soldier by giving no sufficiently explicit orders to his men.* To such dimensions is the charge of Mr. Gladstone reduced directly we come to examine into its particulars! * The following is the Italian text: "In ogni modo pero, dopo conosciute le offese reali fatte alla pattuglia, il soldato non e punibile e forse merita riprensione il Capo pattuglia per avere egli promosso l'arbitrario agire del soldato, col non avere dato alcun ordine rigoroso ai suoi dipendenti." As there is nothing else to warrant Mr. Gladstone's misimpressions, it may be that his imputation of rigorous intentions to the Duke may have been derived from the word "rigoroso," employed in the above order. But to relieve Mr. Gladstone and his fellow-commentators of any misconception on this account, let us observe that the term means "strict" in the sense of explicit, and by no means implies that the orders were to be severe. If the Duke had ever invited Mr. Gladstone to dine with him, the invitation would have been rigoroso in specifying time and place. The seventh and last charge is that which we may designate as the charge of Obscurantism, and which Mr. Gladstone founded on a document that he says ought to be transmitted to posterity for posterity's edification. Should it so happen that he document reaches its promised destination, it would be great pity that posterity should not receive with it the explanation which it is here in our power to give as to its contents. It would be strange indeed if the charge of Obscurantism could be fixed upon the heirs of the House of Este, who, of all men, have made the most liberal provision in their dominions for the culture of literature, science, and the fine arts. The reader will remember the appreciative German and his list of the institutions of Modena in the days of the Duke's father, and he will infer justly that Modena was then a centre of culture, not only for its own duchy, but that it radiated far and wide its educational influence throughout Italy. Lest the reader should suppose that Modena changed its character under the present Duke, it is important to state what its educational resources were up to the date when the Duke's government was violently supplanted, and before Piedmont had conceived the design, which it is about to carry into effect, to suppress the University and Academy of Modena altogether. Mr. Gladstone, with his honourable solicitude on behalf of the faculties for the acquirement of academic qualifications and distinctions, will thereby have a new office suggested to him, to remonstrate with Piedmont, while Piedmont is ruining what benighted Modena so long enjoyed. At all events he must transfer the charge of Obscurantism when he learns the provision for educational purposes which existed in full and fruitful operation throughout the extent of the Duke's dominions, and to which the Duke himself contributed in the directest sense up to the date of the recent revolution. For the provision of public instruction in Modena a special department was annexed to the Ministry of the Interior. The city of Modena itself was endowed with educational establishments more profusely, perhaps, than any other city of its size. Its University, one of the most remarkable in Italy, whether we regard the eminence of its professors or the value of the collections with which it was provided, received youths from the whole State for the graduate's course, and in spite of the Farini-Gladstone insinuations, without the slightest impediment as to social status, or limitation as to numbers. The usual number of students in all its faculties was about 60 at a time, a number in proportion to its population, which the Modenese State may proudly compare with the numbers at Oxford, Cambridge, London and Durham combined. In addition to which students could graduate at Reggio, and being under no obligation to come to Modena, did so graduate in numbers also considerable. In the University of Modena alone the theological faculty comprised five chairs, its legal faculty ten, its medico-surgical faculty twenty, and its philosophy faculty six chairs; and at Reggio the provision was in the same ample proportions.* * Ghega, the engineer of the famous railway works over the Semmering, owed his scientific training to the Modenese schools; and many other engineers now highly esteemed in Germany and even in America were also educated in Modena. Besides the University, there were also at Modena one Gymnasium for the upper and philosophical schools; two Lyceums for the lower schools, up to rhetoric, inclusive; two Colleges, one for the noblesse and the other for the bourgeoisie; one Military Academy, in great repute, which was organised by the Duke's uncle, Archduke Maximilian, a prince of the greatest merit and ability, and in which some of the very leading Piedmontese generals of the present day received their education. There was a Mathematical School for cadets; there were public schools for the study of the fine arts, including music, and state schools even for dancing, fencing and gymnastics; and there was an Academy of Fine Arts, which was raised by the munificence of the present Duke Francis the Fifth and his father to the rank of one of the most distinguished in Italy. Moreover the young men who exhibited superior talents in this Academy were sent at the Duke's charge to Rome, to Florence or Venice, to complete their artistic education; and thus the Academy of Modena sent out painters, sculptors, engravers, and architects, whose merits are too well known to require panegyric here. Again, there was a school for orphans, two deaf and dumb schools, infant charity schools, night schools, &c., &c, too various to be particularised. Nor was this profusion of educational resources confined to the city of Modena, for, on the contrary, it was spread proportionally throughout the Duchy. Reggio, Mirandola, Carpi, Finale Correggio, Guastalla, Massa, and Castelnuovo di Garfagnana, each had the advantage of a separate public high school, where the studies extended to the classes of philosophy inclusive, and where the instruction was either gratuitous or nearly so, and where all who wished to enter were admissible. In all the other chief communal towns there were public grammar schools amounting together to the number of twenty, which gave instruction up to the rhetoric classes inclusive, and where all were equally free to attend and study. In Reggio there was a second Academy of Fine Arts, which also produced famous scholars; while a third was judiciously kept up at Carrara, chiefly with the view of forming sculptors, where the material of their art was so abundant and accessible. The influence of this Academy is probably known throughout the world, through the names of the eminent artists it has formed, such as Tenerani, Finelli, Cacciatori, and others. At Massa, again, there was a school for sculpture; and there were schools of design at Carpi, Correggio, Mirandola, and other places; such care was there taken under the Ducal regime to bring out the special capacities of the Italian nature. Thus the schools of music were still more numerous than those of sculpture and painting, for it may be said literally that they were to be found everywhere, and down to the pettiest chief towns of communes of even the third class, any musical capacity to be found in the neighbourhood was provided with instruction and aids to its development. What is most deserving of emphasis as regards these institutions, especially since upon this very ground they have been disparaged, is the fact that they were really accessible to everybody, either gratuitously, or at charges which are barely intelligible as compared with the cost of such education in England. Indeed, almost the only fees that existed were for the examinations for admission to degrees, and even these did not exceed the total amount of 300 francs, or 12l., at which cost any person whatsoever might attain the degree of Doctor in Laws or in Medical Science, or the Mathematics.* * The theological faculty of the University of Modena was exclusively under the control of the bishops, nor did the Government interfere with this in any sense. Otherwise the only limitation on the number of degrees conferred was the idleness or inaptitude of the aspirant. For the Duke was in the habit of paying out of his own purse pensions in aid of meritorious students, whereby numbers of his subjects every year were enabled to cultivate their natural gifts. In fact, by one means or another, any one who had sufficient talent and diligence could rise from the lowliest estate to the dignity of a Doctor's degree, and had thus the opportunity of devoting himself to a liberal and learned profession. Such was, in effect, the number of graduates in Modena that M. Fulchiron, a well known French statistical writer, in a work upon Italy published during the reign of Louis Philippe, estimates it as larger in proportion to the population than in any other state in Italy - Italy in the aggregate possessing more graduates than any other country. It was indeed a very curious incident of the Ducal Government that the Duke should contribute to this result so largely out of his private fortune, and the number of petitions he was in the habit of receiving from poor scholars for maintenance during their term of study, could they be marshalled together, would sufficiently dispel the notion of his obscurantist tendencies. The Commissioners of Farini, however, have printed five only, in which the Duke thought it best to refuse the petition of the applicant, while the vast heap of petitions granted are carefully concealed from sight. In some of the cases the Duke alleges some special grounds for refusing the request; but at length, such was the surplus of graduates in Modena, that he refused others avowedly upon grounds of public policy. And indeed to tell the truth, if the truth is permissible, it turned out at last that the people of Modena were educated far beyond their natural requirements; that is to say, a larger number of persons were induced to qualify themselves for the learned professions than the learned professions could sustain in any degree of comfort. This superfluity of gentlemen, with a professional status but without a proper professional sphere, was enormously aggravated by the reckless mode in which degrees were granted during the revolutionary confusion of 1848. At that time, whether it arose from pusillanimity, form the fear of the poignards of candidates whose native fervour was inflamed by the prevalent revolutionary fever, or from any more sordid cause of mischief, the examiners scattered their degrees in such profusion that the designation, "Un dottore del '48.'" has been ever since a by-word of reproach in Modena. Yet these urgent and successful claimants were the victims of their won importunity, for we must remember that the Doctor's degree in law was like our call to the English bar; it was the final qualification and passport to practice; and so many persons of ranks were encouraged to obtain it by the extraordinary facilities of which we have spoken, that in effect there was somewhat a superfluity of Doctors, and the class was more numerous than certain of a bare subsistence. If we refer to the Modenese official Almanack for 1856 (which we suggest as a desirable addition to Mr. Gladstone's library), we shall find that, besides the public functionaries, there were in that year about 500 qualified lawyers and notaries in the Duchy, all Laureate Doctors of the University. The whole population of the state being a little over 600,000, this gives a proportion of law to the wants of the population such as no other country in Europe exhibits. It followed that the surplus of lawyers had the keenest incentives to stimulate a spirit of litigation among the community, and that they resorted to expedients inimical to its welfare. Such consequences were in fact observed upon all sides, as also the needy condition of the lawyers themselves who, if possible, were more to be pitied than their occasional clients. It would have been thus a considerate thought on the part of any one to devise some means for mitigating this excessive competition and pressure. If in England the number of licensed victuallers is limited by reference to the presumed wants of its beer drinkers; if in France and other countries the same practice obtains with respect to bakers, butchers, tobacconists, and other trades, a tendency to overcrowd the profession of law might be no less reasonably restricted in Modena. Modena, like the majority of continental countries, did not and could not offer the outlets which England so exceptionally affords to men who have mistaken their walk in life, and accordingly these superfluous Doctors of Laws were forced to remain face to face starving or struggling for each other's bread. If Doctor could be saved from devouring Doctor by elevating the standard of degrees at the University, and so rendering the list of practitioners more select, it might have been a work of humanity if performed; and that some such conception did occur to the Duke, himself responsible in a very direct sense for the welfare of all his subjects, is evidence by the letters which he wrote upon this distressing state of things. But when Mr. Gladstone implies that these letters were ever acted upon, Mr. Gladstone is as usual altogether in the wrong, for the plan they suggested came to nothing. Modena was a land vexed to the very last with Doctors of Laws, and as a matter of course, these lawyers without clients were extremely hungry; they were the eager abettors of any revolution, and provided its perjuries, calumnies, and conspiracies cheap. It was among this class that the Dictator Farini recruited his instruments. It is to the very plethora of education in Modena that Mr. Gladstone owes his charges, and we the inference that in making this last charge he is either ignorant or particularly ungrateful.
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