On the eleventh of December Malesherbes wrote to the President of the Convention asking to serve as defense counsel for the King. He did this with a characteristic mixture of courage and self-effacement, as if apologizing for the immodesty of putting forward his name for Louis’ consideration. Was there, however, a trace of irony in his observation that “I am far from supposing that so important a person as yourself [i.e., the President] should concern yourself with me, but I was twice called to the [royal] council of him who was my master at a time when that position was universally aspired to. I owe him the same service when it is an office that many people judge to be dangerous.”
One of those people was the man who had had the reputation of being the greatest practitioner of legal eloquence in old-regime France: Target. Though his counter-attacking defense of de Rohan in the Diamond Necklace Affair had bloodied the nose of the monarchy, Target had since sat in the National Assembly as a loyal upholder of constitutional monarchy and had indeed devised the Rex Francorum (King of the French) formula that was supposed to signify peaceful transformation. He was Louis’ first choice for the defense, but on being approached shrank from the service as if he had been offered a poisoned chalice. He pleaded age (though he was fourteen years Malesherbes’ junior), infirmity, pressure of other affairs. He was sorry but he simply could not do it. A year later, though, during the Terror, Target, the lion of the Parlement of Paris, was to be found acting as secretary to the comité révolutionnaire of his Paris section.
It was exactly this moral disintegration of intellectual comradeship that had most distressed Malesherbes during the Revolution. Throughout his long life he had believed in the ethically purifying power of reason. That was why he had been the most creatively complaisant of all Directeurs de la Librairie, not really comprehending on what possible basis of either morality or utility censorship could stand. In the spring of 1789, having withdrawn from the debacle of Brienne’s ministry, he had completed a long memorandum on the freedom of the press which, in all innocence, he had sent to d’Hémery, one of the most assiduous cultural policemen of the old regime. What had since happened had not shaken his belief in the absolute importance of the freedom to publish, but rather in the morally base ways in which it could be abused. Worse still was the supine compromise with violence that had broken the back of the liberal coalitions of the 1780s.
What had happened to all that company of articulate friends supping together and disposing of the antiquated France with shafts of illumination and reams of legislation? Lafayette was in an Austrian prison, having committed treason; Mirabeau had been disgraced by the revelation of the court correspondence. Talleyrand was in London, ostensibly on diplomatic business for the Republic, but no one expected him to return. Both he and Du Pont de Nemours had narrowly missed death during the same week at the time of the prison massacres. La Rochefoucauld had not been so lucky. Identified as the signatory of a document drawn up by the department of Paris urging the King to veto the law deporting refractory priests, he had been brutally killed by a mob. Not altogether fairly, Malesherbes blamed Condorcet for La Rochefoucauld’s terrible end, even attributing it to some intellectual squabble. Malesherbes’ grandson-in-law de Tocqueville (the writer’s father) heard him say that while he would shelter his enemies he would never give asylum to Condorcet (who very soon would be in desperate need of it), even if his life were in danger.
All that remained in this bottomless pit of sorrow and confusion was to pull together the threads of one’s own integrity and expire with as much self-esteem as one could decently manage. Not that Malesherbes put himself forward in a spirit of fatalism. Though he was seventy-one, there was still a great determination and an energy set in his knobbly features that defied even Robespierre to dismiss them as aristocratic. Moreover, the years since 1789 had not been entirely fruitless and miserable. He had seen a granddaughter married into the Breton clan of the Chateaubriands. And he had spent many happy hours planning an expedition to the Northwest American Passage with the young writer François-René, who had seen rapture in the vision of the French navy at Brest. Together they pored over maps of the Bering Strait and the Hudson Bay and engravings of walrus and whales. “If only I were younger I would go with you,” the old man confessed.
He had at least been able to do some Swiss botanizing. His daughter Françoise and her husband had emigrated to Switzerland and Malesherbes went to stay with them at Lausanne in the spring of 1791 while he collected samples of Alpine flora for his collection. Ironically it was this most innocent dalliance with the “émigrés Montbossier” that would be the pretext for bringing him before a revolutionary tribunal in the Terror. By midsummer he was back in Paris at his house in the rue des Martyrs. Though we have no idea what he thought of the flight to Varennes, he was sufficiently concerned about the King’s plight to attend on him at the Sunday levers in the Tuileries despite “that cursed sword that gets in the way of my legs.”
Malesherbes was not the only person to come forward and offer to defend Louis before the Convention. A much less probable volunteer was the feminist actress Olympe de Gouges, the author of the Declaration of the Rights of Women and Citizenesses, who, although an ardent revolutionary, felt Louis to be more victim than tyrant and evidently wanted to demonstrate that women were no less capable of “heroism and generosity” than men. The King passed up her offer but was glad to hear from his second choice after Target, François-Denis Tronchet, another ex-magistrate of the Parlement. In accepting, Tronchet grumbled about the interruption of his retirement, but he could not refuse to serve someone whose fate was “suspended beneath the blade of the law” – the current euphemism for the guillotine.
Louis needed all the help he could get. He had only been allowed lawyers after hearing the indictment against him, drawn up by Robert Lindet on behalf of the Commission of Twenty-one. The mayor of the Norman town of Bernay and an ex-deputy of the Legislative, Lindet usually echoed the views of the Mountain, although his sheltering of an officer of the Swiss guards on August 10 already spoke for his humanity. During the Terror he would be one of the two members of the Committee of Public Safety to refuse to put his signature on Danton’s death warrant. His acte énonciatif, however, was a bleak document: a long history of the Revolution that represented the King’s conduct, throughout, as a disingenuous rearguard action, full of deceit and intended violence. On many instances, now richly documented from the armoire de fer, Lindet could hardly be contradicted. The King had indeed resisted the calling of the Estates-General until threatened by complete fiscal subsidence; had prepared to use force against the union of the orders and the demonstrations against Necker’s dismissal in Paris; had attempted flight; and had negotiated secretly to restore his authority in contravention of oaths he had publicly taken. It was a damning chronicle of subterfuge and bad faith. What was missing, of course, from the account was any sense of violence or intimidation from the other side; so that instead of the real trial of strength which had characterized the history of the Revolution, Lindet’s indictment presented royal behavior as a series of indisputable crimes.
On the morning of the eleventh, the mayor of Paris, Chambon, came to fetch from the Temple the man he named “Louis Capet.” “I am not Louis Capet,” retorted the King indignantly; “My ancestors had that name but I have never been called that.” It was one of the few moments of anger during a day when, however harried, he once again showed extraordinary self-possession. Wearing an olive-green silk coat, he stood before the Convention and galleries packed with spectators, until given permission by the President, Bertrand Barère, to be seated. Nothing, as the Convention was well aware, could have symbolized more exactly the inversion of the world of Versailles, where hierarchical precedence had been precisely indicated by conventions governing the possibility of sitting down in the royal presence.
Louis heard the full indictment and then responded to questions put by Barère, flatly denying that he had done anything illegal either before or after 1791, dismissing as absurd the accusation that the aborted journey to Saint-Cloud was an escape attempt. On laws that he had vetoed in 1791 he responded that the Constitution gave him the right to do so and rejected the characterization of his reinforcement of the Tuileries as preparation for “an attack on Paris.” Throughout he showed the calmness of a man who actually believes he is irreproachably in the right. Only when Barère directly asserted that he was “responsible for shedding French blood” did Louis give way to an emotionally angry retort. Some witnesses saw a tear fall at this point, but determined not to allow his prosecutors to see any weakness Louis quickly put his hand to his cheek, following with a rubbing motion on his forehead as though the whole action was wiping away sweat that was anyway running freely in the stuffy Manège. The weakest part of his testimony was the almost careless way in which he failed to recognize his own hand on documents taken from the infamous armoire de fer.
Between the appointment of his lawyers and his full trial at the end of December, Louis’ days were taken up preparing his defense. The Commune had decided to wound him further by refusing to allow him to see his children, a decree of gratuitous cruelty that the Convention somewhat softened by permitting occasional access. But the routine of the family group had been broken and was replaced by the comings and goings of the attorneys. Malesherbes, whose offer the King had accepted, and Tronchet had decided to ask for the assistance of a younger colleague with a reputation for the kind of powerful, sonorous eloquence in which the Bordeaux bar seemed to specialize: Romain de Sèze. As a group the King could hardly have asked for more formidable defenders, but they were not altogether united in their approach. Malesherbes, who, by one account, had discussed with the King as early as 1788 David Hume’s treatment of the fall of Charles I, wanted Louis to challenge the credentials of the court to bring him to trial, and especially to attack the Convention’s assumption of the roles of judge and jury, in contravention of the legal conventions set up by the revolutionary codes themselves. To have done this, of course, would have meant contesting the whole legality of the revolution of 1792 – exactly as Robespierre had predicted – but, at least, Malesherbes thought the position would have great inner cogency and moral power.
The King, however, was stubbornly determined to play to his weakness, to insist on his constitutional inviolability, but then defend his conduct as a conscientious citizen-king, refuting the case point by point, much as he had already done on the eleventh. His belief that true justice would infallibly demonstrate his innocence even led him to suppress what he obviously regarded as the excessively rhetorical pleading contained in de Sèze’s peroration.
On the morning following Christmas, Louis was brought once more to the bar of the Convention. Though he had not slept for four days, de Sèze was in brilliant form for his plaidoyer, reiterating the case that the position granted to the King precluded prosecution from what was, in effect, a coeval branch of the constitution. Nor could he be tried for actions for which he had already suffered abdication, still less by a body of men who had already determined and broadcast their views on his culpability. He then reviewed the narrative of Lindet’s indictment from the other side, representing Louis’ conduct not as calculated deception and conspiracy but as the response of legality against intimidation. This had been the King’s consistent attitude, he claimed, right up until August 10. “Citizens,” began his peroration,
if at this very moment you were told that an excited and armed crowd were marching against you with no respect for your character as sacred legislators … what would you do?… You accuse him of shedding blood? Ah! he mourns the fatal catastrophe as much as you. It is the deepest wound inflicted on him, his most terrible despair. He knows very well that he has not been the author of bloodshed though he has perhaps been the cause of it. He will never forgive himself because of this.
De Sèze finished by painting a portrait of a young king who had come to the throne as an honest reformer, benign in intentions and conscientious in government. It was, for the most part, a recognizable picture. The counsel made the serious mistake, however, of using one of Louis’ favorite phrases, namely that he had “given” the French liberty – an account of 1789 not likely to have won sympathy among his audience. De Sèze’s last words were, like almost all the great set-piece speeches of the Revolution, an appeal to History: “Think how it will judge your judgment.”
It seems unlikely that being put in the dock of posterity by De Sèze did much to alter the conviction of the vast majority of deputies as to Louis’ guilt. But this is not to say that his defense, both in his lawyers’ impassioned and powerful presentation and in the silent dignity of his person, had no effect. It was apparent, not least from the strenuous efforts of the Mountain to get on with the business of the sentence, verdict and execution, that public opinion had been moved by both of Louis’ appearances in court. Copies of the plaidoyer had been printed as an official act and were being distributed quite as widely as Lindet’s accusatory act. There were even signs of popular disturbances on the King’s behalf, for example at Rouen, where a riot broke out.
Sensing in this indeterminate movement of opinion a final opportunity to damage their opponents on the Mountain, a group of the Girondins made a dramatic move to shift the theater of judgment outside the Convention. An “appeal to the people” had been raised much earlier by deputies like Kersaint openly hostile to the trial itself, but now it was adopted by Vergniaud and Brissot in particular as a way of avoiding the otherwise inevitable death of the King. To demonstrate that in doing this they were not in any sense monarchist, another of their number, Buzot, renewed the attack he had launched on Philippe-Egalité, who sat with the Mountain. By demanding the death penalty for anyone proposing to restore the monarchy, he put the Jacobins, including Marat, in the distasteful position of having to defend the cousin of the King. And the Girondins showed a similarly subtle grasp of tactics in supporting the call for a popular vote on both verdict and sentence. Citing Rousseau, whose sacred texts were now routinely plundered for apposite supporting statements by both factions, Girondin orators like Vergniaud claimed that the Convention had no right to usurp authority that rightly still belonged to the people whose “mandatories” they remained. Logically, then, all forty-four thousand primary assemblies that had elected them ought to be reconvened to determine the King’s fate. Only in this way could the Convention be sure that it was not acting in violation of the General Will. Characteristically, Brissot added a foreign dimension to the argument. All Europe was watching their conduct, he said, without much exaggeration. The enemies of France would be quick to accuse the Convention of being a plaything of isolated factions. How much more powerful would be the refutation if it could be shown through the vote of the people that they in fact acted in complete accord?
The most eloquent, and certainly the lengthiest, rebuttal came from Bertrand Barère on January 4, 1793. To the uncommitted deputies on the Plain it must have been all the more powerful because it echoed some of the standard views of the leading Jacobins without their partisan apoplectics. Barère brought the Convention back to a vivid understanding of its own position, which by definition was to make a final break with the monarchy. It should, he argued, accept that responsibility and not pass it off in a cowardly way to electors, especially since that would undeniably put them in the middle of appalling partisan conflict. The choice was between the Convention determining to act as the proper repository of sovereign power or abdicating liability, turning the country over to anarchy and civil war. His speech could not have been further from Marat’s sanguinary hysterics, and to a body of men preoccupied with their own collective authority it had a deeply telling effect. By virtue of the fact that they were deputies at all, they had accepted republicanism. How could they shrink from taking the last logical step to sign and seal that identity?
None of this made Louis’ fate a foregone conclusion. When the voting began under Vergniaud’s presidency on January 4, there were three questions for decision: the guilt or innocence of the King, the sentence and the still unresolved question of a popular appeal. The order in which they were to be taken was immediately seen as critically important in that, once the King had been condemned and sentenced, the popular appeal would look like a desperate rescue act rather than an impartial consultation. The Girondins, however, split on the issue as they had over the appeal itself. Some members, among them Maximin Isnard, who had been very close to Vergniaud and Guadet, voted consistently with the Mountain on all these issues. After screaming matches and mutual denunciations thrown across the hall forced Vergniaud into suspending the session, a compromise was concocted by which the issue of the appel would follow that of the verdict, but precede that of the sentence.
On the morning of January 15 the voting began with the appel nominal, the oral vote, cast at the bar by each of the 749 deputies. This immensely laborious method of proceeding had been demanded by Marat as a way of exposing “traitors” in such a way that he could hardly be contradicted without proving his point. Required simply to answer yes or no to the questions, a few hardy souls – like the constitutional bishop of the Haute-Marne and the great scientist Lalande – refused to be put in the position of judges. No one, however, actively voted for Louis’ innocence and 693 deputies (for some were absent) voted for guilt. As David Jordan points out in his fine book on the trial, when it came to the second vote on the appeal, its advocates realized there had been damaging attrition in their ranks since Barère’s speech. Some even expressed their continued support for it in principle but voted against its likely consequences. In the end the issue was defeated 424 to 283.
The most dramatic of the three votes, of course, was that of the sentence, which began on January 16. As a preliminary, the Breton Lanjuinais, who had helped dig the grave of the old monarchy by leading the revolt of the Rennes magistrates against the Brienne edicts, now attempted to rescue its personification. Anything so important as the sentence of a king should be enacted only by a two-thirds majority. The proposal met with a crushing retort from Danton, recently returned from the army in Belgium, who said that since the Convention had not thought the abolition of the monarchy itself had required a two-thirds majority, it would be transparently specious to invent the rule now.
From eight in the evening until nine in the morning the deputies continued their procession to the tribune, watched, according to Mercier, by spectators drinking and consuming ices and oranges to sustain them through the long winter night. When Mailhe’s turn came, he surprised the Convention by voting for death but then raising the issue of when the sentence should be carried out. He was, in effect, asking for a new vote on a reprieve and was followed in this by other deputies, including Vergniaud. That the Girondin, though, could answer the question of death in the affirmative had a shattering effect, not least on Malesherbes, who was devastated on hearing his vote. When the turn of the Paris delegation came, Robespierre spoke first as the deputy who had come at the top of the election poll. “I do not recognize a humanity,” he said, “that massacres the people and pardons despots.”
Last on the Paris list was Philippe-Egalité. The man who in the peckingorder of court protocol had been permitted to hand the King his chemise at the daily lever now voted for his cousin’s death on the grounds that “those who attack the sovereignty of the people” deserved it.
As dawn came up it was apparent that the death sentence would be passed. Of 721 present and voting, 361 had voted unconditionally for death and 319 for imprisonment to be followed by banishment after the war. There were two votes for life imprisonment in irons and two for execution after the war (presumably to preserve the King as a hostage). Twenty-three voted in the Mailhe manner for death but asked for a debate on a reprieve, and eight for death with the expulsion of all the Bourbons (including Egalité). The majority for death in one way or another, then, was not one but seventy-five.
After Vergniaud had pronounced the sentence, the King’s lawyers were led in for a final address to the Convention. All three had been denied seats and had stood for thirteen hours during the voting. Tronchet first read a letter from Louis, who refused “to accept a judgment that accuses me of a crime for which I cannot reproach myself” and which asked for an appeal to the nation on the judgment of its representatives. Its tone was anything but that of a supplicant throwing himself on the mercy of his judges, and its defiance made it more difficult for Tronchet and de Sèze to reiterate the case that Louis’ fate should be determined by the larger majority of two thirds.
Exhausted and despondent, Malesherbes then attempted to plead the compassionate case of common humanity. But he was too emotionally overcome to be coherent. Apologizing for not being able to improvise a speech, he stumbled over his words and fought back sobs: “Citizens, excuse my difficulties… I have observations to make to you… will I have the misfortune of losing them if you do not allow me to present them… tomorrow?”
Some of the deputies doubtless thought that the spectacle of the old man dissolved in misery for a client unworthy of him was pathetic. Many more were touched by the openness of his sorrow. Tears, after all, for this gathering of coeurs sensibles were supposed to be the milk of moral purity. But they let his syntax break down of its own accord into a distraught silence broken, predictably, by Robespierre. He could forgive Malesherbes for tears shed over the fate of the King, he generously conceded, but he rejected any further talk of an appeal to the people. And there was no more talk.