The first debate over the fate of Louis XVI concerned whether the Convention could try the King at all, and if so, for what crimes. The Constitution of 1791 had promised Louis "inviolability," meaning immunity from prosecution. One of the first speakers was LouisAntoine Léon de SaintJust, a brilliant, idealistic, and young Jacobin deputy. He drew on Montesquieu as well as Rousseau to argue that the legislature indeed had both the political authority under the constitution and the moral justification to judge the King.
I shall undertake, citizens, to prove that the King can be judged. . . .
I say that the King should be judged as an enemy and that even more than judge him, we must fight him. Also, in that he was not a party to the contract that unites all French people, the judicial procedure to follow is not to be found in Civil Law, but rather in Common Law.
. . . Perhaps one day, men as far removed from our prejudices as we are from those of the Vandals will be astonished by the barbarity of an age in which the judging of a tyrant was thought to be something sacred. Where the people, having a tyrant to judge, raised him to the rank of citizen before investigating his crimes and were more concerned about what would be said about them than about the task at hand. And where a guilty man who belonged to the class of oppressors, the lowest class of humanity, became a martyr to their pride.
One day men will be astonished by the fact that humanity in the eighteenth century was less advanced than in the time of Caesar. Then a tyrant was slain in the midst of the Senate with no formalities but thirty blows of a dagger and with no other law save the liberty of Rome. And today we respectfully conduct a trial for a man who assassinated a people, caught in flagrante delicto, his murderous hands soaked with blood!
These same men who are to judge Louis also have a Republic to create. Those who attach any importance to the King receiving a fair punishment will never be able to create a Republic. For us, the sensitivity of our minds and character is a great obstacle to liberty. We make all error seem more attractive and, more often than not, truth for us is only the seduction of our tastes. . . .
We must therefore courageously advance toward our goal, and if we desire a Republic, we must be serious about it. We judge ourselves severely, I would even say with rage. We think only of tempering the energy of the People and of liberty, whereas we hardly reproach our common enemy. And everyone, either from weakness or because they stand with the accused, look at each other before striking the first blow. We seek liberty, and we are becoming each other's slaves! We seek nature, and live armed, like wild savages. We desire a Republic, independence, and unity, but we are divided and treat a tyrant with gentleness . . . .
It would seem that we are searching for a law that would allow us to punish the King. . . .
The social contract is between citizens, not between citizens and government. A contract is useless against those who are not bound by it. Consequently, Louis, who was a party to it, cannot be judged by Civil Law. The contract was so oppressive that it bound the People, but not the King. Such a contract was necessarily void since nothing is legitimate that is not sanctioned by ethics and nature.
These reasons lead you all not to judge Louis as a citizen, but as a rebel. But besides these reasons, by what right does he demand to be judged by Civil Law, which is our obligation toward him, when it is clear that he himself betrayed the only obligation that he had undertaken towards us, that of our protection ? Is this not the last act of a tyrant, to demand to be judged by the laws that he destroyed? And Citizens, if we were to grant him a civil trial, in conformance with the laws and as a citizen, it would be him who would be trying us. He would be trying the People themselves.
For myself, I can see no middle ground. This man must reign or die. He will prove to you that all he has done, he has done to uphold his office with which he had been entrusted. By discussing this with him, you cannot make him incriminate himself for his hidden malice. He will lead you in a vicious circle created by your very accusations. . . .
I will say more: a constitution accepted by a King did not bind the citizens. They had, even before his crime, the right to banish him and send him into exile. To judge a King as a citizen . . . that would astound a dispassionate posterity. To judge is to apply the law. A law is linked to justice, and common to mankind and kings? What does Louis have in common with the French people that they should treat him well after he betrayed them? . . .
It is impossible to reign in innocence. The folly of that is all too evident. All Kings are rebels and usurpers. Do Kings themselves treat otherwise those who seek to usurp their authority? Was not Cromwell's memory brought to trial? And certainly Cromwell was no more usurper than Charles I. For when a people is so weak as to yield to the tyrant's yoke, domination is the right of the first comer, and it is no more sacred or legitimate for one than for another. These are the considerations that a generous and republican people must not forget when judging a King.
You will be told that the verdict is to be ratified by the People. If that is to be, why can they themselves not pass judgment? If we did not sense the weakness of such ideas, whatever form of government we might adopt would find us slaves. The sovereign would never be in his place, nor the magistrate in his, and the people would have no guarantee against oppression.
Citizens, the tribunal which must judge Louis is not a judiciary tribunal . . . it is a council . . . it is the People . . . it is you. And the laws that must guide us are those of citizens' rights. A civil trial would be unjust since the King, deemed to be a citizen, cannot be judged by the same men who have accused him. Louis is a foreigner among us. He was not a citizen before his crime: he could not vote, he could not bear arms. He is even less a citizen since his crime, and by what abuse of justice would you make him a citizen in order to condemn him? As soon as a man is found guilty, he leaves the polity, but quite to contrary, Louis would gain entry by his crime. I would go even farther . . . if you declare the King to be a citizen, he will slip from your grasp. Which of his obligations would you rely on in the current state of things? . . .
I shall forever contend that the spirit in which the King will be judged is the same spirit with which the Republic will be established. The theory behind your verdict will be that of your public offices, and the measure of your philosophy in the verdict, will be the measure of your liberty in the constitution. . . .
You will never see my personal will oppose the general will. I shall desire what the People of France, or the majority of its representatives, desire. But, as my personal will concerns a portion of the law which has not yet been written, I open myself to you in all frankness . . . .
It is therefore you who must decide if Louis is the enemy of the French people, if he is an alien. If the majority of you decide to absolve him, then that verdict would have to be ratified by the People, for if no act of the sovereign can truly constrain a single citizen to pardon a King, even less could an act of the magistracy constrain the sovereign! . . .
Source: M. J. Mavidal and M. E. Laurent, eds., Archives parlementaires de 1787 à 1860, première série (1787 à 1799), 2d ed., 82 vols. (Paris: Dupont, 18791913), 5356:39093.