An analytical discussion of the Revolutionary Government and the mechanism of the Terror would throw some preliminary light on the questions which we have set out to examine. Here, however, we should be turning over old soil, and it is unlikely that we should find evidence that has not already been cited many times. We had best confine ourselves to a fresh approach and leave the mechanism of the Terror to the ample treatment it has merited in the general histories of the Revolution and in numerous monographs. But the means of revolutionary justice--the laws by which the victims of the Terror were condemned and the courts which applied the laws--require brief description.
Terrorist legislation furnished ample ways of implementing Robespierre's famous dictum that the Republic owed its enemies nothing but death. The supreme penalty was edicted for a large number of specific acts, and the ever broadening definitions of "enemies of the Republic" made possible its application in cases of almost any sort. As early as December 4, 1792, the Convention decreed that "whoever proposes or attempts to establish the monarchy in France or any other power detrimental to the sovereignty of the people, under whatever denomination it may be, shall be punished by death"; and less than a fortnight later, on December 16, the same penalty was prescribed for persons convicted of having tried to "destroy the unity and indivisibility of the French Republic". Thus, royalism was outlawed before the Terror began, and these laws, broadly interpreted, were frequently cited in the death sentences passed by revolutionary courts. But it was in the spring of 1793, after the Vendéen rising and the defeat and treason of Dumouriez, that the flood of terrorist laws set in. Treason, espionage, and correspondence with the enemy were, of course, capital offenses; on April 4, 1793, the Convention enlarged the definition of treason to include expressed approval of Dumouriez's acts or his "anti-republican principles," and on May 12 commanding officers who surrendered without sufficient cause or lost battles through neglect of precautions were virtually stigmatized as traitors. Later, after the invasion, it was made a capital crime for local authorities, down to the lowest rank, to accept or to retain office in invaded territory or to remain in residence in such territory during its occupation by the enemy. This law was applied retroactively.
The most frequently invoked of the laws directed against the internal enemies of the Republic were those concerning sedition in all its forms and embracing opinions as well as acts. Early in the Terror seditious language, seditious cries, and seditious writing were made punishable by death. But by far the most important of these decrees was that of March 19, 1793: it alone resulted in more executions than all the other legislation of the regime. Obviously provoked by the Vendée rising, it outlawed rebels. If taken with arms in their hands or with royalist insignia in their possession they were to be condemned to death by military commissions and executed within twenty-four hours. If taken without arms, they were to be tried without appeal by the criminal courts and, if convicted, sentenced to execution within the same time limit. Clause VI confined the immediate application of these terms to leaders and instigators of revolts and riots, local authorities, priests, former nobles, and their agents and servants; the rest, the rank and file of insurgents, were to be held until the Convention decided their fate. The Convention never formally decided; but Hérault de Séchelles gave its verdict succinctly when he wrote Carrier: "We can be humane when we are assured of being victorious." Humanity was distinctly in abeyance. Wherever there was serious rebellion the one ray of leniency in the most Draconian law of the Terror was completely ignored. Thousands of insurgents of every rank and degree were shot or guillotined in virtue of the decree of March 19.
The laws on emigrés fill two large volumes, but their essential provisions for our period are comprised in the detailed act of March 28, 1793. Three categories of persons were classed as emigrés, those who had left France before July 1, 1789, and had failed to return before May 9, 1792; those who could not prove continuous residence in France after the latter date; and those who had passed from intact French territory occupied by the enemy. Children under fourteen years of age were excepted; and merchants and artisans whose normal occupations took them abroad, government agents, and a few other groups were permitted to travel in foreign countries provided they complied with the passport regulations. The penalty for emigration was perpetual banishment and confiscation of property; returned emigrés were to be sentenced to death by military commissions, by the criminal courts, or by the Revolutionary Tribunal of Paris upon identification and verification of the fact, and the same penalty was applicable to accomplices of emigrés. The burden of proof, made extraordinarily difficult by a maze of technicalities, was upon the accused.
The legislation relative to refractory clergy is almost as voluminous as that concerning emigration. On August 26, 1792, priests who refused to take the oath of liberty and equality were ordered to leave France within fifteen days under penalty of deportation to French Guiana. A great many of them, however, remained in the country and evaded deportation. Hence, in the spring of 1793 refractory clergy who had failed to comply with the law or, having been exiled or deported, had returned to France, were defined as emigrés to be punished in the same manner. The principal terms of these edicts were reiterated in September and October, and the definition of refractory Clergy extended to virtually all non-constitutional ecclesiastics, regular and secular, even those not originally required to take the oath. In April, 1794, the concealment of clergy under the ban of the law, an act hitherto punished by deportation, was made a death offense. Nuns were placed under the obligation of taking the oath in 1793, and though there was no penalty for failure to comply, refusal to do so was often taken as sufficient evidence of incivisme to warrant the death sentence.
"Hoarding is a capital crime," reads the first ominous clause of the famous law on accaparement passed by the Convention on July 26, 1793, in the midst of the agitation of the Enragés. Hoarding was described as storing commodities of primary necessity without placing them on sale or wilfully allowing such goods to perish. The list of commodities included food stuffs, fuels, household supplies, clothing and cloth, and the essential raw materials, such as wool hemp, hides, iron, and copper. Declarations of stocks were to be made within eight days to municipal or communal authorities, and retailers and wholesalers were required to post lists of their merchandise outside their establishments. Failure to comply with any detail was a capital offense. In this case, at least, severity seems to have defeated its own purpose. The commissaires aux accaparements acquired a sinister reputation and doubtless well earned the hatred of the bourgeois whose shops or homes they ransacked; but the courts were reluctant to bring in verdicts of guilty. The Convention itself intervened in two cases to prevent the application of the law, and the result of the second of these affairs, that of the wholesale wine merchant Gaudon who had neglected to post the required list of merchandise and prices, was the repeal of the clauses making death the mandatory penalty. For several months there was no legal punishment for accaparement. Finally, on April 1, 1794, the law was completely revised; a graded series of penalties-- confiscation of merchandise, fines, and prison terms--was prescribed for violation of various clauses and the death penalty retained only in cases of hoarding with deliberate counter-revolutionary intention.
It is perhaps significant that infraction of the maximum was never made a capital offense, though the most trivial expression of political heresy could lead to the guillotine. But there was no quarter for war profiteers, corrupt contractors, or artisans and manufacturers who sold the Government defective goods. In September, 1793, a group of conscripts from the section of the Droits de l'Homme displayed to the Convention a pair of service shoes the soles of which were made of wood and cardboard. The Convention was moved, and in the same session it adopted a decree identifying corrupt furnishers with counter-revolutionaries.
By the spring of 1794 every definable manifestation of anti-republican feeling had been proscribed; but still there were enemies of the people who somehow escaped the meshes of revolutionary justice. The laws of Ventôse and Prairial were intended to crush the last spark of opposition. They made blanket definitions of all counter-revolutionary crimes which were again made to include the slightest articulation of regret for the old regime or of hostility, even of indifference, to the new. "The enemies of the people are those who seek to destroy liberty either by force or by ruse," declared the law of 22 Prairial; and subsequent clauses of the act enumerated the crimes at length, most of them so vaguely and comprehensively that no person was quite safe. Thus was completed the eschatology of the Terror, the web of repressive legislation which doomed to death all those who opposed the Revolution in act, word, or thought. Justice in the common sense of the word, Saint-Just explained, was irrelevant to the purpose of these laws. "That which constitutes a Republic is the total destruction of that which opposes it." Or, as Couthon put it, the object of this legislation was to annihilate enemies.
The code of the Terror was applied by courts of different types, the most notorious of which were the revolutionary tribunals. That of Paris, created on March 10, 1793. to try counter-revolutionaries and conspirators, was originally composed of five judges (three necessary for a sentence), a jury of twelve men, a public prosecutor and two assistants, and a clerk, all elected by the Convention. At first a commission of six members of the Convention acted as a grand jury, but the commission indicted no one and on April 5 it was suppressed and the public prosecutor empowered to cite suspects before the court, except ministers, deputies, and generals, who could not be tried without a decree by the Convention. When the second stage of the Terror began in the autumn of 1793, the Revolutionary Tribunal was reorganized in the interest of greater expedition. On September 5 it was divided into four sections working simultaneously, and the number of judges, jurymen, and assistant prosecutors was correspondingly increased. The decree of October 29 adopted to stifle the Girondin defense, virtually limited the duration of trials to three days. The law of 22 Prairial (June 10, 1794) suppressed legal counsel for the accused and defense witnesses--phantoms, as Saint-Just remarked; but the same decree made death the unique punishment for crimes within the Tribunal's competence and at the same time forbade the prosecutor to dismiss cases for lack of evidence. Prior to June 10, 1794, over a hundred persons had been sentenced to fines, prison, or deportation, and many more cases had been dismissed. Revolutionary tribunals similar to that of Paris in organization, procedure, and competence were established by representatives on mission at Arras, Cambrai, Brest, Rochefort, and Toulouse during the winter of 1793-1794.
The majority of the victims of the Terror, however, were condemned by civil or military commissions, stationary or ambulant, instituted by representatives on mission principally in the regions of revolt and civil war. The military commissions, authorized by a series of laws, were usually composed of five judges (officers and soldiers), a prosecutor, and a clerk, though the latter was often found to be superfluous. There was no appeal from their verdicts. Technically their competence was confined to cases involving emigrés, refractory clergy, and rebels captured bearing arms; but in practice most of them tried all sorts of political offenses. Often, as at Granville and Angers, the representatives on mission explicitly extended their jurisdiction to embrace all counter-revolutionary crimes but with or without express authorization, they soon ceased to make any distinction between rebels and other counter-revolutionaries. The civil commissions differed from the military commissions only in one or two details: their members, usually five, were civilians, and their formal competence was general. They were entitled commission révolutionnaire, commission populaire, commission extraordinaire, depending on the fancy of the deputy who created them; but many of the more important commissions, both civil and military, are better known in history under the names of their most conspicuous members--the Commission révolutionnaire of Lyon as the Commission Parein, the Commission militaire of Laval as the Commission Volcler, that of Rennes as the Commission Frey, that of Bordeaux as the Commission Lacombe.
In addition to these special courts and commissions, the criminal tribunals of the départements, functioning without juries and judging without appeal, administered revolutionary justice. On the whole, they were much more deliberate and observant of legal forms than were the revolutionary tribunals and commissions, and the representatives on mission often complained of their legalistic scruples. It was partly because of this distrust of the career judges of the criminal courts that the representatives on mission often ordered important cases to be transferred to Paris. For the rest, some of the criminal courts were quite willing to escape the obligation of applying the harsh legislation of the regime.
Finally, there are a few instances of still other types of jurisdiction. Courts martial in the strict sense of the term occasionally tried counter-revolutionaries; the district tribunal of Gaillac in the Tarn was on one occasion pressed into service; there was a special tribunal attached to the revolutionary army of the Moselle; and at Angers a board of three judges, called a Commission recenseur, went through the prisons selecting persons to be shot without further formality.
In the spring of 1794 there was a marked tendency to concentrate revolutionary justice in Paris. The law of 27 Germinal (April 16) ordered that suspects from "all points of the Republic" be transferred to the capital, and by implication at least rendered superfluous the local revolutionary courts. But the law of 19 Floréal (May 8) was explicit. The Revolutionary Tribunal of Paris was given exclusive jurisdiction in cases of counter-revolution, existing local tribunals and commissions were suppressed, and no others were to be created except by decree of the Convention. The Committee of Public Safety, however, was authorized to make exceptions for the commissions or tribunals whose continuation it judged advisable; and the criminal courts retained jurisdiction in cases of returned emigrés, refractory clergy, and counterfeiters. The result of these laws was that the end of May saw the end of the Terror in many départements. At Nantes, for instance, the Lenoir and Bignon commissions ceased to function on May 13, and the Criminal court rendered no sentences after that date. Most of the extraordinary courts still functioning in other départements disbanded about the same time, some a little earlier, some a little later, depending on the distance from Paris. But the Committee of Public Safety made liberal use of its discretional power; the famous Commission populaire of Orange was created in Floréal; and it was precisely after the nominal suppression of provincial tribunals and commissions that certain départements saw the worst of the Terror. The majority of the executions at Bordeaux, Orange, Nîmes, Arras, and Cambrai took place in the last months of the Terror.
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