Condorcet (3 December 1792)
In the case where an entire nation has been wronged and is both prosecutor and judge, it is the opinion of mankind, the opinion of posterity, to which that nation is accountable. It must be able to state that all the general principles of jurisprudence that are recognized by enlightened men everywhere have been respected. It must be able to stand up to the blindest of biases so that not even the smallest rule of equity can be cited as having been violated. Then, when that nation judges a king, kings themselves, in their inmost hearts, must approve of the judgment.
It is important for the happiness of mankind that the conduct of France towards the man it too long called its king be the final step in curing other nations of whatever superstitions they may still hold which favor a monarchy. Above all, we should beware lest we increase that superstition among those still ruled by a monarch. . . . Thus, it is to the laws of universal justice, common to all constitutions and unalterable in the midst of clashing opinions and the revolutions of empires, that we must subject our decisions.
Can the former King be judged?
An action can be grounds for legitimate punishment only if a previous law specifically identified that action as a crime; and it can be punished only with a penalty which likewise was prescribed by a previous law. . . .
If, however, the law failed to distinguish in the list of crimes those which aggravating circumstances made even more heinous, it must not be concluded that the law wished to exempt them from punishment, but only that the aggravating circumstances did not seem to require the prescription of a specific penalty. The laws of Solon do not include parricide. Shall we conclude then that the monster who was guilty of this crime was intended to remain unpunished? No, surely he should receive the same punishment as a murderer.
If, then, the laws of France say nothing specifically about a king who conspired against the people, even though he is much more guilty than a citizen, it does not follow that he should be spared, but only that those who wrote the laws did not wish to distinguish him from other conspirators. He should be judged then by the usual law, if another law did not specifically exclude him. . . .
Two articles make this clear. In one, the person of the King is declared inviolable and sacred. The other states that for all crimes committed after his legal abdication, he shall be judged like other citizens. . . .
The person of the King was declared sacred. Either 'sacred' has no meaning, or it has the sense which it is given in the tenets of the various religions. In the case of unjust acts of violence, this is a crime against religion in addition to a crime against society. In legal convictions, the guilty man is stripped of his civil rights before being sentenced so as to inspire a greater respect for what is somewhat supernatural in nature. By this, the constitutional King was likened to a bishop or a priest, persons also considered sacred but who are nevertheless not exempt from the power of the laws.
The authors of the Constitution, by instituting a monarchy, created a power outside of nature which they believed required superstitious terrors in order to provide for the security of kings. But the result is merely that if the monarchy had not been abolished, the forfeiture of rights would have had to be decreed in a separate judgment.
The word 'inviolable' is not defined by the Constitution as it applies to the King; but it is defined elsewhere, as it applies to the representatives of the people.
Their inviolability entails two very distinct conditions, both applicable to the King. The first is that they may not be persecuted for what they did or said as representatives; and as soon as a king was established he must necessarily share in this kind of inviolability.
This prerogative, extended to all the King's executive acts, posed dangers which that of the deputies did not. Thus the King was required to have these acts validated by the signature of a minister responsible for their legitimacy. The nation was not without checks, and if it did not have all those which might be demanded by the principles of justice rigorously applied, at least it had all those compatible with the existence of so bizarre an institution as the monarchy. . . .
. . . But it is common knowledge that he is accused of crimes outside of his royal duties. It was not as King that he paid for parodies designed to ruin the nation's credibility, or that he bribed France's enemies, or that, in concert with his brothers, he formed a league with the enemies of the nation. It was not as King that, in despite of the laws that he himself had approved, he armed foreign troops against the citizens of France.
Another condition of the inviolability of the popularly elected representatives was that they could not be prosecuted except by decree of the legislature. Thus when the Constituent Assembly discussed the question of the King's inviolability this point was rightfully mentioned, for by the very nature and importance of his functions he could not be answerable before a tribunal on the summons of those public officials whose conduct he supervised. It was shown that the man who had the authority to suspend the creation of laws, the head of the executive and commander of the army and the navy, should not be exposed to the risk of being stopped from these great tasks by the will of any particular tribunal. The arguments used to exempt the deputies from the common order of judicial prosecutions were used in the king's favor, and with the same success. . . .
Thus, the impunity of the King was not decreed by the Constitution. Yet that document did not set forth the way in which he was to be judged. It did state that if he ceased to be King, he would, for his subsequent crimes, be prosecuted and judged like any other citizen; but it did not decide as to how he might be judged or prosecuted for his prior crimes. . . .
Moreover, how could the Constituent Assembly have set down in the Constitution the method by which the King was to be judged? In accordance with the spirit of the Constitution, the legislature could not have the power to accuse him. To whom could that power belong? To the nation alone, and from there to the representatives which it named to the Convention. It would therefore have been necessary for the Constitution to indicate to the National Assemblies precisely the same plan of conduct that the Assembly of 1792 followed on 10 August. And if one recalls the timid circumspection with which the Constituent Assembly spoke of the inalienable right of the people to change its constitutional laws, one will not be astonished to see that the Assembly has not dared facilitate the exercise of this power by placing in the Constitution a means by which, in the case of serious accusations brought against the King by the citizens, the legislature might call a National Convention. . . .
It is time to teach kings that the silence of the laws about their crimes is the ill consequence of their power, and not the will of reason or equity.
The question, then, has been reduced to an examination of whether the rule of justice, which requires that a prior law determine the offense and the punishment, does not also require a preexisting law in order to establish the procedure of judgment.
Now I do not believe that justice demands this. . . .
Let me return to the subject of this discussion. Is the existence of Louis XVI favorable or adverse to sincere or feigned supporters, to foreigners or Frenchmen, to constitutional or hereditary monarchy? Does it benefit their plans that the throne which they wish to reinstate may be occupied by a child or must necessarily be occupied by a man made vile by his conduct and odious by his crimes? Is it in the interest of the French Republic to diminish the interval which separates persons living in foreign lands from the throne, lands where they will long be the active and docile instruments of all our enemies?
In a word, as the existence of these hereditary pretenders is a necessary evil, can the conservation of our liberty be truly influenced by changes in the order of the claims, in the interest, hopes, and means of the persons called to take part in this absurd substitution?
Will our severity frighten or irritate the enemy kings and the devotees of monarchy? Will the still-wavering sentiments of several nations be alienated or encouraged? These are questions to which it is difficult to reply without having been able to observe the effects of our first resolution on France and on Europe. Such questions seem to demand that the National Convention reserve the right to modify the sentence of the tribunal, or to submit it to the people and tell them how to execute it.
If the judgment were favorable, would the nation have lost all rights over the man who had been King? Let us suppose that in the exercise of his usurped authority, a hereditary and absolute monarch had committed no injustices, no violent acts. Let us suppose that, blinded by his education, he honestly believed that his authority was legitimate. Let us admit that these are two hypotheses which no king has ever realized. Can it not be said then that the involuntary nature of the error absolves the penalty? But the right to be cautious concerning the effects of this error nonetheless remains. One does not punish a madman, but one takes the steps necessary to assure that he can cause no harm. And if the liberty of Louis XVI, innocent, were dangerous for the safety of the nation, doubtless the nation would retain the right to deprive him of that liberty.
Yet how could we, in all fairness, reserve the right to take precautions for our safety in the case of an acquittal, without at the same time reserving for ourselves the right to modify the penalty in the case of a conviction?
Thus, by giving political considerations all the weight which they might be expected to have, we see that they are unrelated to the question of the judgement, and that they could only influence the commutation of the pronounced penalty or the precautions which might be required by the nation's interest. To judge an accused king is a duty; to pardon him can be an act of prudence; to retain the possibility of such a course is an act of wisdom for those to whom the political destiny of a nation has been confided.
I would therefore propose a postponement of the question of whether and by whom the judgment may be modified until the other questions have been decided, and just before the tribunal is seated.
Such are my reflections on a subject that belongs to the order of human things, which philosophy may treat, for once, according to the principles of justice and with a sense of cool impartiality.
Kings have long been mere men in the eyes of reason; and the time approaches when they will be so for politics as well. Yet at this moment, when the prejudices which surround a throne have disappeared at last but the influence of kings on the destiny of nations still remains, is it only now that it is possible and useful to expand the people's rights of over these beings beset by error and vileness, and over the ghosts of their superstitions.
When Europe has but one king to judge, then his trial, having become an ordinary case, will no longer deserve the world's attention.