From The New Digest:
ShareThat the trial of Louis was indeed a sham — a proceeding for which “one can find neither pretext nor means in any existing law,” as Louis put it in his testament — is not seriously contestable. David P. Jordan’s book on the trial, probably the best treatment available in English, details the copious violations of law by the revolutionary republican assembly, the National Convention. Those violations occurred at several levels. Even putting aside the ancien regime view that the King could not be tried and judged by any human power and is accountable only to God, the trial violated both the post-revolutionary Constitution of 1791 and the new Criminal Code enacted in 1791. The Constitution had made “the person of the King … sacred and inviolable” and specified that he could only be prosecuted as a citizen for acts posterior to his abdication, whereas Louis was charged with treason for acts taken when he was still the constitutional monarch. To be sure, the Constitution of 1791 had been de facto abrogated by the fall of the constitutional monarchy and proclamation of a republic in August-September of 1792. Yet the Constitution had not yet been replaced, and there was a serious legal argument that it still governed Louis’ acts at issue, which had occurred while it was in effect — an argument made by a number of the Girondin deputies at the trial.
As to the Criminal Code, it was still in effect at the time of the trial and was violated in countless ways. It required, for example, that the jury of accusation or grand jury should be different than the trial jury, and composed of different members, whereas the National Convention took on both functions, appointing itself judge and jury as well as lawmaker. Louis was also denied access to evidence before the trial (evidence whose provenance was not proven in valid form anyway); given no notice of the charges against him before he was interrogated; and given a hopelessly inadequate span of time to prepare such defense as he could. The Jacobins were in a sense more candid, or at least more logically consistent in their lawlessness, than the Girondins. They opposed holding any trial in the first place, arguing, as Louis Antoine de Saint-Just put it, that Louis was an enemy alien outside the revolutionary body politic, with whom the revolutionary state was at war, and who should be executed without any process at all, as one would shoot an enemy on the battlefield.
Saint-Just’s (in)famous speech is translated in a book by Michael Walzer that is quite prominent in the English-speaking world, and that gives a number of the leading speeches of both regicide and non-regicide deputies. Walzer’s agenda, however, is quite explicitly to justify Louis’ trial and execution as a revolutionary necessity, the only way to condemn and kill the King’s body politic along with his natural body. This mars the book, making it an unreliable guide to the events and legal arguments. Walzer, for instance, omits on some trifling pretext the speech for the defense (!), crafted by the great ancien regime lawyer Malesherbes (although delivered at the trial by another of Louis’ attorneys, de Sèze). A contemporaneous translation of the speech was provided in 1793 by a London publisher and is available here. Walzer, it may be added, preserves a discreet, ambiguous and doubtless tactical silence about whether revolutionary justice also required the later deaths of Marie-Antoinette by guillotine, and of the King’s eight year old son Louis-Charles by criminal neglect and starvation while in prison. On Walzer’s logic, it seems that they too had to die so that the Revolution might live, as Robespierre had said of the King; in a monarchy, the Queen and the King’s heir are also part of the King’s body politic, of one flesh with the crown. (Read more.)
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