by Ruth Scurr
ROYALISTS WERE INCREASINGLY annoyed by the Arras lawyer. Who was he? Why was he so radical, so vexatious for them in the assembly? Rumors began to circulate. The most outlandish claimed he was the nephew of Robert-François Damiens, the most infamous person to have emerged from Arras before him. Damiens had been an unemployed domestic who tried to assassinate the previous king of France on 5 January 1757 (the year before Robespierre was born). He chose the eve of the Epiphany for his attempt. Swathed in a cloak, he sauntered past the Swiss Guard on the palace steps at Versailles and stabbed Louis XV in the side as he was climbing into his coach. It was an improbably naïve and simpleminded plan, and it very nearly worked. The king clutched his ribs, saw blood on his hands, announced, “Someone has touched me!” and was carried back up the palace steps to die.12 He had already called for a Jesuit priest and hastily confessed his last sins, when it became clear that the wound was superficial and not at all life-threatening thanks to the shortness of Damiens’s blade and the number of clothes the king was wearing to protect himself against the cold air. Damiens was arrested, interrogated, tortured, and condemned to a gruesome death on the place de Grève in Paris. As one eyewitness recalled:
After the tearings with the pincers, Damiens, who cried out profusely, though without swearing, raised his head and looked at himself; the same executioner dipped an iron spoon in the pot containing the boiling potion, which he poured liberally over each wound. Then the ropes to be harnessed to the horses were attached with cords to the patient’s body; the horses were then harnessed and placed alongside the arms and legs, one at each limb…. The horses tugged hard, each pulling straight on a limb, each horse held by an executioner. After a quarter of an hour, the same ceremony was repeated and finally, after several attempts, the direction of the horses had to be changed…. This was repeated several times without success.13
Damiens’s horrific suffering became an iconic representation of the arcane and ritualized cruelty of old regime France. There was no truth to the rumor that Damiens, the would-be regicide, and Robespierre were blood relations, but it gathered a flimsy credibility nevertheless. The royalist press was so keen to defame the Incorruptible that it seized on any opportunity. Yet there was a self-defeating irony in attempting to blacken Robespierre’s name and provenance by linking him with Damiens. Why should a radical revolutionary shun identification with the emblematic victim of old regime cruelty? No matter what the crime, had the accused been punished thirty-five years later, after the Revolution, there would have been no flesh ripped from his breast, arms, thighs, and calves with enormous custom-made pincers, no molten lead, boiling oil, burning pitch, wax, and sulphur poured on his wounds, no horses, four and then six, straining for interminable hours to pull his bleeding limbs apart. Instead Damiens would have suffered a cleaner, more humane end, in keeping with the Revolution’s penal code: “Every man condemned to death will have his head cut off.”
The assembly finally got around to discussing a new penal code in May 1791. The issue had first arisen in Versailles just before the assembly’s move to Paris, in a series of proposals put forward by Dr. Guillotin:
I. Crimes of the same kind shall be punished by the same kind of punishment, whatever the rank of the criminal.
II. In all cases of capital punishment (whatever the crime), it shall be of the same kind—i.e., beheading—and it shall be executed by means of a machine.
III. Crime being personal, the punishment of a criminal (whatever it may be) shall inflict no disgrace on his family.
IV. No one shall be allowed to reproach any citizen with the punishment of one of his relations. The judge shall reprimand anyone who dares to do so, and this reprimand shall be posted on the door of the delinquent and moreover shall be posted on the pillory for three months.
V. The property of a convict shall never be confiscated.
VI. The bodies of executed criminals shall be delivered to their families if they demand it. In all cases the body shall be buried in the usual manner, and the registry shall contain no mention of the nature of the death.14
Because of the imminent move and other pressing business, the assembly postponed discussion of Dr. Guillotin’s principles and only took them up again several months later. The first proposal was approved without any problems, following as it did from the abolition of old regime privileges—there was no question of reserving decapitation for nobles under the new constitution. The second article, however, provoked more discussion. Was it or was it not desirable to extend the practice of decapitation to all cases of capital punishment? One of the assembly’s leading royalists, the abbé Maury, thought not. A brilliant preacher, a stalwart match for the stentorian Mirabeau, and the great hope of those who opposed the Assembly’s more radical initiatives, Maury argued against routine decapitation “because it might deprave the people by familiarizing them with the sight of blood.”15 Maury’s very interesting point was brushed aside by Dr. Guillotin, who insisted that hanging was a far worse public spectacle and confidently reassured the Assembly that decapitation had never been simpler or more humane: “Now, with my machine, I’ll knock your head off [ je vous fais sauter la tête] in the twinkling of an eye, and you’ll never feel it.”16 At this the deputies collapsed in helpless laughter. As the acerbic historian John Wilson Croker pointed out, “amongst the laughers there were scores who were destined to be early victims of the yet unborn cause of their merriment.”17 Despite his crude boasting, Dr. Guillotin’s machine was not ready for use, nor, strictly speaking, was it his own invention. His name became associated with the new machine because he avidly promoted it, but around the corner from the assembly, at the College of Surgeons, it was a M. Louis who was busy reinventing the Halifax gibbet, which had cut off heads in seventeenth-century England.18
In the light of his earlier writings, we might expect to find Robespierre supporting Dr. Guillotin’s proposals. Before the Revolution he had himself argued for extending the privilege of decapitation—“a punishment with a certain éclat”—and putting an end to the tradition of bad blood that tainted a criminal’s whole family with his or her shame. In 1791, however, he distinguished himself by insisting that the time had come to abolish the death penalty altogether. He began his speech with a classical reference: on learning that the death penalty had been introduced in either Athens or Argos (the newspaper reports of his speech differ over which), the citizens ran to the temple to ask the gods to intervene and save man from such cruelty to man. For rhetorical flourish, Robespierre pointed out that his prayers had the same content but were addressed not to gods but to his fellow legislators in the assembly. He was against the death penalty for two reasons: first its injustice; second its ineffectiveness as a deterrent. He thought it unjust because society could not have rights that individuals lacked, and individuals had the right to kill only in self-defense. This, of course, left open the questions as to when a society had the right to kill in order to defend itself and how its enemies, internal or external, could be defined. Such questions had long preoccupied Robespierre, and would soon come to obsess him, fearful as he was about the threat of counterrevolution, but on this particular occasion he set them aside to present a clear argument against the death penalty:
Note well one circumstance that decides the matter: when society punishes a culprit, harming him is out of the question; instead it holds him in chains, it judges him peaceably, it may use its limitless authority to chastise him and make it impossible for him to make himself feared in the future. A conqueror who butchers his captives is called barbaric. [Murmurs from the floor.] Someone who butchers a perverse child whom he could disarm and punish seems monstrous. [More murmurs from the floor.]19
At this point the abbé Maury interrupted, sarcastic as ever: “Tell M. Robespierre to go and deliver his opinion in the forest of Bondy.” This was slang for the badlands, haunts of bandits or outlaws, and a real forest too, just outside Versailles, where an Austrian king had once been assassinated. Ignoring Maury, Robespierre
went on to consider the death penalty as a deterrent and here his argument became more idiosyncratic. No one, he insisted, was as afraid of dying as they were of calumny—in fact, good citizens would prefer to die rather than merit the scorn of their fellows. According to him, integrity was the most dominant of human passions, stronger even than the desire to live. The death penalty confused severity of punishment with efficiency, when what was really needed was a system of punishment finely attuned to the passions that drive human nature. Robespierre was further concerned that the death penalty might discourage the innocent from denouncing the guilty, for fear of depriving them of life. He did not elaborate on the kinds of punishments he thought suitable for those denounced by their fellow citizens. Instead, he cautioned the Assembly against allowing the sword of the law to run with innocent blood. One royalist newspaper, the Journal de Louis XVI et de son peuple, referred to him as “the democrat Robespierre,” but no one seems to have noticed that his arguments against the death penalty were all compatible with the most stringent social repression, should this be required to safeguard the interests of good and innocent citizens; everything he said was compatible with the famous maxim Salus populi suprema lex (the safety of the people is the supreme law).
Despite Robespierre’s intervention and the applause it won him, the assembly voted on 3 June 1791 to retain the death penalty: “Every criminal condemned to death will have his head cut off.” At this point in the Revolution, hanging had also been discredited by mob violence, lynching, and brutal murders à la lanterne, in which aristocratic or counterrevolutionary suspects were set upon and strung up from lampposts. Camille Desmoulins, tastelessly, had gone so far as to style himself procureur de la lanterne.
ON 7 APRIL, less than a week after Mirabeau’s death, Robespierre proposed and carried a decree prohibiting any member of the assembly from becoming a minister of the king for four years after the new constitution became law. He was inspired by the earlier decree in November 1789—aimed against Mirabeau—that had prevented assembly deputies from simultaneously accepting posts as ministers of the crown. Now that Mirabeau was dead, why was Robespierre bothering to extend the prohibition for another four years? As so often, it was a point of principle for him. He had studied the writings of Montesquieu and Rousseau; both had insisted on the political importance of separating legislative and executive power. The assembly was a legislative body, so its members could not be ministers of the executive without confusing the two kinds of power. Not content with this step, Robespierre went one further and proposed that members of the existing assembly should also be ineligible to stand for election to the new legislature under the new constitution. In an astonishing act of political self-denial, he effectively ensured that he and all his colleagues in the assembly would be thrown out of power when the new constitution was enacted.
Even at the time, it was unclear what exactly Robespierre hoped to achieve by this move: further proof of his incorruptibility; protection against the possibility that his reactionary colleagues might be reelected and he might not; some other inscrutable scheme; or simply the relentless application of one of his political principles for its own sake. Some historians have argued that, irrespective of what he thought he was doing, the result of Robespierre’s decree was the disastrous exclusion from political life at a crucial juncture in the Revolution of the only people who had any relevant experience: those deputies who had been there from the beginning. Others disagree and think that amid the tumult spreading through Paris and all France, any elections would have returned only the most extreme candidates: “factious lawyers—infidel sophists—club orators—newspaper writers—and unprincipled adventurers of all disreputable classes and characters.”20 Robespierre could not have been aiming for either of these outcomes. He was, more likely, remaining rigorously true to his ideals—whatever the consequences.
A few weeks later he addressed the Jacobin Club on the freedom of the press. Drawing inspiration from the American example, he argued for complete absence of censorship in both public and private life; perfect liberty, he insisted, was the best, indeed the only, way to ensure that what got published was “as pure, serious, and healthy as your morals.”21 In an age as prone to pornography and libel as any other, there was something unworldly about Robespierre’s expectation. Yet he was nothing if not consistent. Amusingly, he thought there was no future for pornography in France, but he nevertheless opposed restrictions on the exhibition or sale of obscene images: “The Law must be founded on principle,” he argued, and there must be absolutely no limits on liberty. He had already intervened in the assembly in defense of the incendiary journalism of Marat and Camille Desmoulins, but now he set out a theoretical case for freedom of the press. In a free state, he explained, each and every citizen acts as a guardian of liberty. Everyone must be completely free to protest, in person or in print, anything endangering liberty. If, as a consequence, public officials find themselves exposed to calumny, so be it:
Incorruptible men, who have no other passion besides the well-being and glory of their country, do not dread the public expression of the sentiments of their fellow citizens. They know only too well that it is not easy to lose their esteem, when one can counter calumny with an irreproachable life and proof of disinterested zeal; if they are sometimes victims of a passing persecution, this is, for them, the badge of their glory, the brilliant testimony of their virtue; they rest assured with gentle confidence in the suffering of a pure conscience and the force of truth, which will soon reconcile them with their fellow citizens.22
The influence of Rousseau, that “eloquent and virtuous citizen of Geneva”—his emphasis on integrity, individual conscience, natural goodness, and dignified independence from a gross and uncomprehending world—is stronger than ever in this passage. At this point, Robespierre was still acting on principle and according to ideals, adopting the kind of uncompromising stance on freedom of speech and freedom of the press that might have won him an essay prize before 1789. This stance was to prove much harder to sustain in practical politics than on the printed page: within two years he was to change his mind dramatically.
In the same speech, Robespierre also made the remarkable suggestion that libel suits arising from unrestricted liberty of the press should be adjudicated not on the legal merits of each case but on the general character of the litigants concerned. In revolutionary circumstances, what could be more dangerously appropriate? The possibility of denouncing public officials not on account of some precise transgression of the law but on grounds of their general attitudes or reputation would soon become an indispensable—and merciless—way of dealing with the real and imaginary forces of counterrevolution. Without this opening to trial by character, it would not have eventually become possible to convict citizens “of hoping for the arrival in Paris of the Austrian and Prussian armies and of hoarding provisions for them” or to execute them for exclaiming “A fig for the nation!”—two examples of the “crimes” later brought before the revolutionary tribunals and punished with the guillotine. While, by contemporary standards, Robespierre’s advocacy of complete freedom of speech was unusually liberal, his suggestion that litigants should be judged according to their characters was the exact opposite. After all, who, beside himself, could lay claim to an irreproachable character? Who, except Robespierre, was beyond suspicion? This more ominous nuance of his argument was probably lost on the Jacobins that night in 1791, and for the time being he remained their champion of untrammeled liberty.
It is testimony to how hard Robespierre was now working that he attended other political discussion groups on the few nights a week that the Jacobins did not meet. At one of these, the Cercle Social, he heard another discourse on the freedom of the press, two days after he had delivered his own to the Jacobins. He borrowed the text—which had been composed by one François-Xavier Lanthenas from Lyon and read to the assembled company by the radical bishop Claude Fauchet—so he could study it more closely at home. At about nine-thirty that evening
, he caught a cab on the quai des Augustins and headed back to the rue Saintonge. Robespierre, as his sister remembered, had always been absentminded. This time he left Lanthenas’s manuscript behind in the cab. Fauchet had read only part of it aloud to the Cercle Social, so there was a real danger that much of it would be lost forever as a result of Robespierre’s inattentiveness. Mortified, Robespierre offered a reward in L’orateur du peuple for anyone who helped trace the speech, hoping that “patriots will do their best” to recover it.23 Paris, for him—unworldly as always—was full of vigilant patriots, hanging on the words of revolutionary orators, committing them lovingly to memory, and tracking down precious manuscripts gone astray in the city’s filthy streets.
