The Trial of Louis XVI

Louis was put on trial at roughly the same stage in the French Revolution as Charles had been in the English. The moderates had, in both, suffered defeat, and the radicals were feeling their first triumph.

In the month before Louis’s trial the National Convention engaged in a debate which revealed three positions on the place of law in a revolution. Charles Morisson, the only deputy who expressed a position close to Louis’s defense, expressed his feeling that he would like to see the “bloody monster” pay for his crimes, but, although such retribution was his first response, reason and respect for the law must prevail. The penal code made no provision for judging Louis. Despite the enormity of his crimes and the blood of his victims which demanded that France avenge what Louis did, the law said nothing. In this silence, Morisson suggested, the National Convention could legally denounce Louis for his treason and despotism, recognize in a resolution that “strict justice” would “cause Louis XVI to expiate his crimes on the scaffold,” and then forever banish Louis from France under penalty of death if he were ever to return.

The Marquis de Condorcet, one of the leading embodiments of the French Enlightenment and a Girondin at the National Convention, took a middle position. If the law was silent on the question of judging the king, that silence was an unfortunate consequence, he maintained, of the king’s own power, not a reflection of the principles of reason and equity. The 1791 Constitution and the penal code, as positive law, were applications of natural law. The king and the National Convention itself were responsible to the nation, and the nation was accountable to mankind and to the posterity. The nation, in Condorcet’s view, could judge the king under the law, could change the law, but it could not violate the law. Instead of being tried by the National Convention, which would then be legislator, accuser, and judge, Condorcet proposed the creation of a special tribunal, with members named by the departments, which would make a judgment independent of the National Convention.³⁹

The third position on whether Louis could be tried is represented with articulate clarity by Louis-Antoine-Leon St. Just and Maximilien Robespierre, two leaders of the Jacobin Mountain. St. Just argued that laws and courts were intended for citizens, not kings. Louis, as a king, was a rebel, an alien, a prisoner of war who waged war against the people and lost. Only the law of nations, not the law for citizens, could apply to Louis. “No man can reign innocently. The folly is all too evident. Every king is a rebel and an usurper.” Louis was guilty of being king. He must either reign or die, but he could not be judged.⁴⁰

Robespierre followed the same logic by denying that the proceeding of the National Convention against Louis was a trial, that Louis was an accused, or that the deputies were his judges:

You are, and you can only be, statesmen and representatives of the nation. You do not have a verdict to give for or against a man, but a measure to take for the public safety, a precautionary act to execute for the nation.

The victory of the revolution was, in Robespierre’s reasoning, the verdict condemning Louis. Putting Louis on trial would be “counter-revolutionary since it would bring the revolution itself before the court.” The people do not judge as a court of law. They do not hand down sentences or condemn kings; they hurl down thunderbolts to plunge kings into an abyss.⁴²

If Morisson found law only in reading the statutes, Condorcet saw such positive law as an application of natural law. Where the positive law of the penal code is silent, principles provide direction. If the code says nothing about the king’s responsibility to the law, we cannot fill the gap with the idea that the king rules with impunity and cannot be tried. St. Just and Robespierre approached law from a position of radical popular sovereignty. The only sacred principles were not those of the bar but, according to Robespierre, “the spontaneous and universal movement of a people weary of the tyranny which oppresses it,” which is the “most equitable of all judgments.”⁴³ Yet, in spite of his populist position on the source of law, Robespierre opposed appealing the fate of Louis to the people. That, he argued, would create stormy arenas for and against Louis in which bad citizens, moderates, aristocrats, and long-winded lawyers would “create pity for the tyrant in the hearts of simple men who cannot see the political consequences of so fateful an indulgence or so unconsidered a decision.”⁴⁴ The general will, which for St. Just and Robespierre in their faithful application of Rousseau’s ideas was the absolute sovereign, would speak through the National Convention, not in a vote of the people themselves. But after the Girondins opposed the Jacobins and had to be purged in the Reign of Terror and Virtue, Robespierre and St.

On December 10 and 11, 1792, Louis XVI was summoned by the National Convention to the building that had been his riding arena, in order to face the accusation. He pleaded innocent to the charges. There were no laws on some of the issues, such as suspending the meetings of the Estates-General; he had no intention of shedding blood, as when the troops marched on Paris, and much of what he was accused of was the responsibility of his ministers. In a reverse of the Nuremberg trial, where the ministers blamed Hitler, Louis blamed his ministers: “I executed all the orders proposed to me by the ministers.”⁴⁶ Instead of pleading the doctrine of superior orders, Louis pled inferior orders.

With the example of Charles I before him, Louis faced three choices.⁴⁷ He could, like Charles, refuse to recognize the authority of the court to try the king. For this, as Morisson's argument suggests, he had good legal ground since the Constitution of 1791 provided that “the person of the king is inviolable and sacred.” Yes, but it also stated that no authority in France is superior to the law, that the “King reigns only by it; and it is only in the name of the law that he can require obedience.” If the king were to use the army against the nation, the Constitution provided, he would be held to have abdicated. After abdication “the king shall be in the class of citizens, and may be accused and tried like them, for acts posterior to this abdication.”⁴⁸ Louis had accepted the 1791 Constitution and was willing to be held responsible for his actions under it, as a constitutional monarch, but not prior to it or apart from it. Yet he was called to answer to the National Convention itself, not a special court such as Charles I had, and the revolutionaries were in control.

The only real choice Louis had was to put up a vigorous defense, although thereby recognizing the right of the National Convention to try him. But if his chances of not being executed were slim, he would have a day in court and a chance for a moral victory. “By insisting on a fair trial,” David Jordan observes, “he would compel his accusers to live up to their supposed admiration for the law. Let them give me a fair trial, he thought, and he would be exonerated. Unlike Mary, Queen of Scots, unlike Charles I, Louis thought this moral victory worth fighting for, and he certainly had no interest in the glories of martyrdom. He would appear in court protected only by the law. He would neither beg for his life nor try to overawe his judges. He would appear before the Convention as a man unjustly charged, as a man who had not violated the laws of men or God. He was neither a criminal nor a tyrant. He dared his accusers to prove him guilty.”⁵⁰

Although not allowed a lawyer at his interrogation, the Convention decided he could be represented at his trial. That gave Louis two weeks to find lawyers and prepare his defense. Of Louis’s three hastily assembled lawyers, Raymond DeSeze, the youngest, presented the king’s defense before the Convention on December 26, 1792. DeSeze’s first argument was that as king Louis was inviolable under the 1791 Constitution unless he was forced to abdicate, and in that situation, he could be tried, but not for what he had done as king. What he had done before 1791 did not apply, and neither the 1791 Constitution nor any statute law could be legally used against Louis. DeSeze even quoted the patron saint of the Revolution, J.-J. Rousseau, for authority to argue that the general will could not pronounce upon a specific person.

DeSeze’s second argument in Louis’s case was an attack on the legal procedure. He directed his attention at the moderates, the Girondians, and gave up on the radical Jacobins, led by Robespierre and St. Just, who were intent on executing Louis without a trial. The moderates might be persuaded that the trial was unfair if DeSeze could do it without attacking the legitimacy of the Convention itself. “Citizens,” he urged, “I will speak to you here with the frankness of a free man. I search among you for judges, and I see only accusers.… You want to pronounce on Louis’s fate, and your opinions are disseminated throughout Europe.”⁵² In all of France Louis is the only person who has the benefits of neither the new nor the old state, “neither the rights of a citizen nor the prerogatives of a king!”⁵³

DeSeze concluded with an attempt to move those who could be moved by compassion. When Louis took the throne at age twenty he was “an example of character,” without “wicked weaknesses” or “corrupting passions.” As king he proved himself to be “the constant friend of the people. The people wanted the abolition of servitude. He began by abolishing it on his own lands. The people asked for reforms in the criminal law…he carried out these reforms. The people wanted liberty: he gave it to them.”⁵⁴ This assertion created a sensational stir in the Convention. An indiscretion, it became useful to the king’s foes.

pLouis spoke briefly, declaring that his conscience reproached him for nothing, that his heart was torn with the accusation that he wanted to shed the blood of the people, and that he had no fear in exposing himself to danger to spare the people’s blood and “to remove forever such an imputation.” The key to what effectiveness Louis’s defense had was neither the legal brief of his lawyers nor the oratorical power of DeSeze’s presentation but, instead, the pathos of Louis himself. “His composure and dignity,” Jordan comments, “the inevitable symbolism of a great man brought low, made more of an impression on contemporaries than did arid legal arguments.” His character and presence made him a sympathetic, even tragic, figure.⁵⁵

The Convention took three votes: Was Louis guilty? Should the decision be submitted to the ratification of the people? What punishment should Louis suffer? Louis struck out on all three: 693 to 0 for guilty; 424 to 283 against an appeal to the people; 361 for death without conditions, 34 for death with various conditions (such as delay), and 321 for imprisonment.⁵⁶ Louis XVI was executed on January 21, 1793.