Jean Jaurès Socialist History of the French Revolution 1901

The Trial of the King

Source: Histoire Socialiste de la Révolution Française. Paris, Éditions Sociales, 1968;
Translated: for by Mitchell Abidor;
CopyLeft: Creative Commons (Attribute & ShareAlike) 2011.

It was on August 10, 1792 that Louis XVI was suspended from his functions as king and imprisoned in the Temple. It was on January 21, 1793 that he climbed the gallows. How could the Revolution have taken five and a half months to judge and execute him? It had an interest in moving quickly. If the king would have been judged and executed in October, as soon as the Convention had met, the country would still have been under the impressions of August 10 and, still moved by anger, would have more easily accepted the audacious blow. Since the Revolution wanted to discourage the royalists and shock Europe with an irreparable act the Convention should have begun its labors with this. It would in this way have marked its labors with an unbreakable seal. What it more, in late September and October Europe was stunned at the sight of the Revolution’s unexpected victories. The king’s death would have turned this stupor into total confusion and it’s possible that the European coalition would have dissolved.

In any case, in September and October England did not appear determined on war, and there is no doubt that that the quick and terrible judging of the king would not have sufficed to decide them on this. The world would have been surprised by the rapidity of the event and immobilized beneath the thunderbolts.

Why did the Convention delay? It was because of the original mandate it had received. The legislative body had stepped aside so that the nation itself could decide on the fate of royalty and the king. Royalty was abolished on September 21. It was necessary to settle the king’s fate immediately afterwards. Despite its audacity, did the Convention feel a secret disquiet? Before this man, which misfortune and brought closer to humanity without completely depriving him of age-old prestige, was it held back by what was left of superstitious respect and the beginnings of a feeling of pity? It tied itself up in these formal difficulties and judicial scruples.

“Is Louis XVI able to be judged for the crimes he is imputed to have committed on the constitutional throne? Who should he be judged by? Will he be brought before regular tribunals, like any other citizen accused of a state crime? Will you delegate the right to judge him to a tribunal formed by the electoral assemblies of the 83 departments? Is it not more natural that the National Convention judge him itself? Is it necessary or appropriate to submit the judgment to the ratification of all the members of the republic gathered in communal or primary assemblies?” These were the questions posed by Mailhe at the beginning of his preliminary report of November 7 and which the legislation committee “profoundly and at great length agitated.”

The Thesis of Inviolability

In truth, this long debate was quite vain. How was it possible to renounce the thesis of royal inviolability? It is certain that the constitution declared the king’s person inviolable and only held ministers responsible, though for certain acts it stated that the king “was esteemed to have abdicated” and decreed his removal. But this constitutional procedure supposes that the constitution is not affected at its roots. If the king’s crimes, if his treason don’t place the nation and freedom in mortal danger, if royalty could survive the king, then yes, it is in accordance with the constitution that the king must be judged, since the constitution remains. But if the king by a long conspiracy has ruined the constitution itself; if through his connivance with foreigners armed to destroy it he has virtually killed it; if the just anger incited by his crime has forced the exasperated and defiant people to a new revolution, how is it possible to apply to a king a constitution of which, because of him, almost nothing remains?

In fact, since August 10 France was not a constitutional, but rather a revolutionary state. The suspending of the king and his internment at the Temple were revolutionary acts. The Convention itself was a revolutionary assembly, since it had not been convoked by virtue of the constitution of 1791 and since it had received from the people, like the Revolution, unlimited powers. It was thus manifestly as a revolutionary assembly that it was to judge, and it was quite strange that there was any discussion on this subject.

It was visibly the sole revolutionary tribunal having the right to judge. Placing the judgment before a jury formed of two jurors per department chosen by the electoral bodies would have been dangerous foolishness. It would have been a parody of the regular forms of justice, for in a question in which the life of the nation was at stake, this jury would not have been able to escape the passions of popular opinion and the hints, the imperious suggestions of the Convention itself. This judgment was, par excellence, an act of sovereignty, since the fate of liberty and the fatherland were attached to it. It was thus sovereignty, that is the nation itself represented at the Convention, which had to judge. There was no longer a constitution, since that of 1791 had been abolished and the new one had not yet been formulated.

In this interval between constitutions there was only one power left: the nation. Or rather, all powers returned to it as to their source. It was precisely because the Convention did not have a purely judicial mandate but rather a political mandate, a total mandate, that it could judge, for it was impossible to separate the judging of Louis XVI from the overall judging of the political and social state of France. It would have meant dismembering sovereignty and mortally dividing it against itself to detach from the complete political power exercised by the Convention the judging of the king, in which the entire political life was contained. And let it not be objected that the nation was both judge and plaintiff and that this is contrary to the rules of justices. When a king has betrayed a nation where in that nation can one find a citizen who is not both judge and plaintiff?

A member of the Convention wrote: must we seek judges on another planet?

It would be strange for the nation to be deprived of its right to judge because of the very immensity of a crime which, in wounding every conscience and life, deprived a people and all the individuals of this people of the vulgar impartiality of a judge. In this sense it is not only to the Convention, but to the entire nation that De Sèze could have said: “I seek judges among you, and all I find are accusers.” But these words are only terrible as concerns Louis XVI who, in betraying an entire people forced an entire people to be both judge and accuser.

The Montagnard Thesis: Saint-Just

But this being so, would it not have been more honest to strike and not judge? This is what , in a strange accord, Kant and Robespierre said. Kant considered that on August 10 the Revolution would have had the right to strike the king in the same way one strikes an enemy in combat, but that pretending to judge him by substituting a new for an ancient law was a mockery.

“And I,” said Saint-Just in his November 13 speech, “I say that the king must be judged as an enemy; that we have less to judge him than to combat him. I would even say that a constitution accepted by a king does not bind the citizens: even before his crime they had the right to outlaw him and drive him out. It would amaze posterity that a king would be judged like a citizen. To judge means to apply the law. A law is a legal relationship: what legal relationship is there between humanity and a king? A king should be tried not for the crimes of his administration, but for that of having been king, for nothing in the world can legitimize this usurpation, and whatever illusion, whatever conventions royalty surrounds itself in, it is an eternal crime against which every man has the right to rise up and arm himself. It is one of those criminal acts which even the blindness of an entire people cannot justify. One cannot reign innocently: the madness of this is too obvious. Every king is a rebel and a usurper.”

This is a sophism. For unless Saint-Just ignores history he must recognize that the institution of royalty is not the work of a handful of audacious men: it responded to historical necessities and all that can be said in 1792 is that the necessities came to an end and that nations were now able to govern themselves. The question is then posed: by what right can we make the individual who was king pay for a destiny for which he is no more responsible than any other men? Or if Saint-Just ignores history, if he prolongs the present hour into the past, if he believes and says that at any moment in the past centuries men could have shaken off the royal yoke the way they were now shaking it off, it is then all of humanity which is criminal and the peoples should punish themselves for their long and cowardly slavery, as they should punish kings for their long and arrogant domination.

It is in vain the Saint-Just alleges that the blindness of the people doesn’t excuse the usurpations of kings: it doesn’t excuse the abject servility of the people, either. And here again, why concentrate on Louis XVI’s head alone a punishment that should strike the humiliated faces of peoples as it does the haughty ones of kings? And so, to say that Louis XI should be struck not because of the crimes he committed in the exercise of his functions as king, but solely because he was king, means being too sever towards one man and too indulgent towards complicit humanity.

In the same way, it is not true that between King Louis and the French people there were none of the legal relationships that allow judgment. Since the Revolution of 1789 a transaction had intervened between historic tradition and the new law, between the royal institution and popular sovereignty. This transaction could have lasted if the royalty had been honest and faithful to its word. It was the constitution itself that was the “legal relationship” between the king and the nation denied by Saint-Just. And even when the constitution had fallen the nation maintained the right to demand accounts of Louis XVI for the betrayals that had nullified the pact between royalty and the people. The king wasn’t freed of his felony by the fall of the constitution against which he had committed his felony. And it was this felony that the nation had the right to judge.

Robespierre’s Opinion

Robespierre, in his speech of December 3 reached the same conclusion as Saint-Just, but for different reasons. Like him Robespierre wanted there to be no judgment: he wanted the king to be executed without a trial as an enemy.

But it wasn’t his quality as king he invoked; it was the crimes he committed against the nation. “People don’t judge in the same way as judicial courts. They don’t issue sentences; they cast lightning bolts. They don’t condemn kings; they case them back into the void.”

The fight had begun between Louis XVI and the Revolution. August 10 was the first blow; death would be the second. On August 10 the people made no claim to passing judgment: in order to defend itself it struck out. It was now going to strike the decisive blow to forever rid itself of the tyrant. “The tyrant must die so the fatherland can live.” Judging Louis XVI meant supposing that he could be innocent, and if Louis XVI was innocent then France was a rebel, it was the Revolution that was a crime. And so, no trial, no act of accusation, no lawyers, no judgment, no new delays, but rather a measure of public security.

What is notable in Robespierre’s thesis is that where the sentence is imposed in advance on the judge there is no judgment, whatever the defense of the accused. After August 10 it was not possible for the Convention to proclaim Louis XVI’s innocence without unleashing the counter-revolution. It was bold, and in a sense noble to proclaim this vital need of the Revolution and not tie up with judicial forms the act that would save liberty and the fatherland.

But this was an idea that was too strong for the hesitant and troubled conscience of France. It lacked the boldness to strike without judgment. It didn’t want to deprive itself of the benefits of Louis XVI’s crimes and, in keeping with the essential forms of justice, it wanted these crimes made known to the nation and the world through a public debate where the accused could make his voice heard. Perhaps Saint-Just’s and Robespierre’s haughty and summary proceedings would have been possible in the immediate aftermath of August 10. The death sentence for Louis XVI would then have appeared to be the consequence of a battle. In December it was too late. Robespierre himself noted the change in mood: “Last August, when the partisans of royalty were in hiding, anyone who would have offered apologies for Louis XVI would have been punished as a traitor. Today he raises his head with impunity.” And Robespierre concluded: “Don’t delay. Don’t waste any more time with hypocritical and timid formalities.”

Marat’s Opinion

But there is no doubt that it was no longer possible to pronounce oneself so summarily without going against public sentiment. M. Ernest Hamel in his “Histoire de Robespierre” wrote in this regard:

“Is it true that at that moment Marat, leaning over to Dubois-Crancé, said to him, ‘with these doctrines we'll do the Republic more harm than all tyrants together?’ This, at least, is what an extremely conscientious historian [Vuillaumé] claimed, though we don’t believe this for three reasons. First, because such scruples seem to us to be essentially contrary to Marat’s genius and habits. Secondly, because Dubois-Crancé, an extremely ambiguous character, deserves no credence. And finally, because they have completely omitted providing us with the least proof of the authenticity of such an allegation.”

It is clear that M. Hamel is scandalized at the thought that Marat could find Robespierre excessive and impolitic. But he has a false idea of Marat. The latter was at times quite considered and prudent, careful not to over excite the forces of counter-revolution. It was precisely in that month of December that he reproached Cambon, because of his motion on the religious budget, of having upset the constitutional priests and inserted a letter from several of them.

It is certain that he condemned Saint-Just’s and Robespierre’s method. We know that he held Robespierre in high esteem: he was the only man he never attacked. He had also been impressed by Saint-Just’s first speeches and he characterized his manner with great subtlety. He wrote on December 1: “The sole orator who gave me any pleasure at the tribune was Saint-Just. His speech on subsistence goods demonstrated a feeling for style and dialectic and a vision. Once he has matured through reflection and has renounced showiness he will be a man, a thinker.”

But on this point he separated himself from Saint-Just and Robespierre. I would like to point it that he didn’t praise Saint-Just’s speech concerning Louis XVI. In fact, Marat’s opinion was that Louis XVI should have been judged in keeping with form. He feared that if the country was not reminded of the most obvious crimes through a solemn trial the death sentence would meet resistance. He expressed his opinion: “Your legislation committee, with a series of reasons drawn from natural right, the rights of men, and from civil right, has made it clear that Louis Capet must be brought to justice. This was necessary for the education of the people, for it is important to lead all the members of the republic to this conviction by the different paths appropriate to the quality of their intelligence.”

It is clear that Robespierre’s summary proceedings did not appear to him of a kind to produce conviction. And since Marat deposed his written opinion at the Convention on December 3, the very day Robespierre spoke, it is quite likely that he showed some irritation with the latter’s views. Robespierre’s intransigent and clear cut opinion gave Marat the appearance of being a moderate. If M. Hamel hadn’t been absorbed and fascinated by the contemplation of Robespierre, if he had referred to Marat’s writings, he would have found the words attributed to him by Dubois-Crancé quite plausible. Marat insisted on his idea: Louis XVI must be judged with ceremony and severity. And in his issue of December 13 he, who was in such a hurry to bring things to a conclusion, complained of the unthinking impatience that risked depriving the Convention’s decision of some of its authority: “It is with pain that I saw the patriot members of this Assembly fall into the trap that was laid for them. How could they not see that the other side sought to have them carry out erroneous measures by pushing them to hurriedly judge Louis Capet! I call for them to reflect. They should pronounce on the fate of the former monarch with the greatest calm and wisdom, less for their own honor than to deprive his henchmen of a pretext to slander them by accusing them of having killed with the sword of the law.”

Marat is obviously thinking here of the session of December 12, where several members of the extreme left proposed that only four days be granted Louis XVI to examine the evidence and present or have presented his defense. Marat was so concerned with handling public -I would even say average — opinion that he was even accused of being lukewarm and had to defend himself in his newspaper.

“In putting Louis Capet back on the throne after his flight to the enemy the representatives of the nation granted remission of his previous crimes. If it is appropriate to place him on trial in accordance with the constitution, at the very least in order to silence his henchmen, I think we must limit ourselves to the acts committed after that date. Because of this simple observation friends have concluded that I am playing tyranny’s game and enemies that I was commiserating with them in their plight. The latter found this mysterious, the former an abominable bit of foolishness.

“Whatever the case, even if the Convention sees that the defenders of Louis Capet abuse the judicial forms it allows not to save the tyrant, but to make his crimes known and to prove to the universe that in condemning him it isn’t condemning an innocent man to death, it is still able to reject this vicious mode, to render justice against a conspiratorial monarch and to treat him as a public enemy taken weapon in hand.”

And so Marat would only rally to Robespierre’s and Saint-Just’s point of view if the other method, judgment in accordance with legal forms, caused difficulties and didn’t resolve the crisis. But in essence his concept is directly contrary to theirs. Far from viewing the king as if the entire nation only saw in him an enemy, he wanted to judge him for his crimes and in accordance with the constitution. He granted remission for the crimes committed prior to Varennes because public opinion saw his reestablishment on the throne as an amnesty. Yet again, it is surprising that M. Hamel erred so seriously concerning Marat’s tactics.

But what I want to point out is that Saint Just’s and Robespierre’s opinion was isolated, that it appeared to almost the entire Convention to be a paradox and it presented no difficulties capable of halting or slowing down the process. If the Convention had from the first days clearly confronted the problem it would, between late September and early October, have certainly decided that Louis should be judged, that he should be judged by the Convention, and that the guarantees of legal forms should be assured him.