You need the right lawyer when you are “Suspended Beneath the Blade of the Law”

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Talking about three lawyers of the French Revolution today.

Last year I read A Place of Greater Safety, Hilary Mantel’s historical fiction novel written sometime in the 1970s when she was just 22 and published 1992. Definitely one of my favourite reads. Just before reading it I had read the first two books in Mantel’s recent Tudor era trilogy  Wolf Hall and Bring Up the Bodies. Yet, by far, A Place of  Greater Safety is the superior of the three works, far more compelling in all its nearly 900 pages. Gravitas plus.

The story is about the French Revolution narrated by the three protagonists, the well known figures of the Revolution, the lawyers Georges Danton, Maximilien de Robespierre and Camille Desmoulins. Desmoulins eventually abandoned the law to pursue a career in writing  & political journalism.

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Danton

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Desmoulins

Reading and studying history is a pleasure for me no matter the content or context and historical fiction is a part of my historical journey. If I wasn’t a lawyer I’d be a historian. No brainer.

Of course historical novels and writing historical fiction are not history and there are historians who frown on the genre. Have a look at Simon Schama’s take on what historians think of historical novels.

The trick is to read A Place of Greater Safety like one reads any historical fiction, keeping in mind the tension between history and fiction. But much of what Mantel fictionalised in the book we know from the existing historiography of the French Revolution.

She portrays the darkest horrors of the bloody Revolution, the tragedy of the Terror as it devoured so many including those at its centre many who ended up being guillotined. Desmoulins and Danton were guillotined on the same day in 1794. Robespierre wielded great power in the Reign of Terror, power that ultimately sent him to the guillotine.

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Robespierre

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Cartoon showing Maximilien Robespierre guillotining the executioner after having guillotined everyone else in France.  La Guillotine en 1793 by H. Fleischmann (1908).


 

There was something special about A Place of Greater Safety. The more I read, the more powerful and convincing it became. I had trouble putting it down. What was it? Why did it absorb me so?

In the book Mantel primarily focusses on the 5 years of the French Revolution. She obviously does meticulous research manifested in her ability to make French Revolutionary history accessible and understandable. What she actually does is write about this part of history for all of us. Yes, the story is absorbingly easy to read and follow, never dull, boring and esoteric.

You don’t have to be a history scholar, an academic, or a history nerd to learn about and enjoy some French Revolution history in this novel. That’s the trick.

Arguably, this very readable fiction could amount to secondary source material and a complimentary part of the historical record of the French Revolution.

Like any good historical fiction the book manifests the tension between history and fiction. On that point, the New York Times Review of Books – Guillotine Dreams is a good place to start. And take a look at Jane Smiley’s History v Historical Fiction or Hilary Mantel’s review of ‘Robespierre’ in the London Review of Books.

For more information on A Place of Greater Safety there are numerous reviews, comments and resources on the internet.

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A Place of Greater Safety also reminded me how little I knew or remembered from past readings about the French Revolution.  I wanted more.

In the mid 1990s when living in Tennessee USA, I purchased historian Simon Schama’s history Citizens: A Chronical of the French Revolution. A tome (950 pages), this dynamic history came with me to Australia. As soon as I finished A Place of Greater Safety I took Citizens from the shelf and re-read it some 20 years after first doing so. Actually, I took it down before I finished Mantel’s book, in readiness.  That’s how stimulating Mantel’s book was.

Now, keep in mind that Schama’s book was written to coincide with the 200th anniversary of the French Revolution in 1989. It was written on a publisher’s commission for public consumption more than for academia which means it is also an accessible read on the Revolutionary history of France. Schama chronicles the pivotal years of the Revolution in a clear and erudite narrative style accessible to all of us.

I’m a lawyer not a historian and Schama’s book amply details the French Revolution for me. I’m not interested in heavy duty primary source material or dry & laborious academic and historical analysis of the Revolution. Simply, I loved Simon Schama’s history as well as Mantel’s book. Indeed I recommend his book to anybody wanting a readable, understandable and thought provoking insight into the Revolution era.

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But over and above the books mentioned, I am particularly interested in legal aspects of the Revolution especially King Louis XVI‘s trial, his defence, sentence and his execution. Who were his defence lawyers? We never hear about this.

Only after hearing the indictment (act enonciatif) was Louis allowed lawyers to represent him before the Convention. Facing the death penalty, he needed all the help he could get, a strong team of lawyers. Like any death penalty case, then or now, the lawyer’s main goal is to save the defendant’s life.

So who were the men who stepped forward to represent Louis as he was “suspended beneath the blade of the law“?  Who were the three lawyers who stepped forward to manifest the responsibility of a lawyer to his client and by doing so, put their own lives at risk?

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Defence of Louis XVI

MALESHERBES

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Guilliaume Malesherbesan elderly and experienced attorney, a retired jurist and former minister asked permission from the President of the Convention to serve as defence counsel for the King.  Many people judged it to be dangerous at the time to offer to act for Louis, to help save his life. Malesherbes offered to join the team of lawyers. In writing to the President, he said:

I am far from supposing that so important a person as yourself should concern yourself with me, but I was twice called to the [royal] council of him who was my master at a time when that position was universally aspired to.  I owe him the same service when it is an office that many people judge to be dangerous. Schama 655 Malasherbes acknowledged that offering his services to Louis may put him in danger.

As a result of advocating for Louis XVI as one of his defence counsel, Malesherbes was arrested in December 1793 and condemned to death as a counterrevolutionary by the Revolutionary Tribunal and guillotined with his daughter and grandchildren.  For journal entries as to what passed between Louis XVI and Malesherbes see Malesherbes on Louis XVI before his Trial 

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Francois-Denis Tronchet, an ex-magistrate of the Parlement, came out of retirement to represent Louis.

In accepting, Tronchet grumbled about the interruption of his retirement, but he could not refuse to serve someone whose fate was “suspended beneath the blade of the law” – the current euphemism for the guillotine. Schama 657.

DESEZE

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Raymond de Seze was Tronchet’s young colleague. In closing argument at Louis’ trial, he finished with this appeal to history:

Louis ascended the throne at the age of twenty, and at the age of twenty he gave to the throne the example of character. He brought to the throne no wicked weaknesses, no corrupting passions. He was economical, just, severe. He showed himself always the constant friend of the people. The people wanted the abolition of servitude. He began by abolishing it on his own lands. The people asked for reforms in the criminal law… he carried out these reforms. The people wanted liberty: he gave it to them. The people themselves came before him in his sacrifices. Nevertheless, it is in the name of these very people that one today demands… Citizens, I cannot finish… I stop myself before History. Think how it will judge your judgement, and that the judgement of him will be judged by the centuries.

For more on Louis’ trial and the work of his lawyers, see The King’s Trial – Louis XVI vs. the French Revolution and Regicide and Revolution: Speeches at the Trial of Louis XVI

WHAT ABOUT LOUIS’ THREE LAWYERS?

The three advocates vigorously prepared the case for Louis.  They defended the King despite the dangers to their careers and lives.  This was professionalism; it was ethical advocacy.

What about the Ethics of Advocacy?  What am I talking about when, as criminal defence lawyers, we act ethically?

Whenever a person is at the mercy of the state facing a criminal charge, there are lawyers prepared to step up and fight for that person and on his behalf, to stand up for the ideals of liberty, freedom & equality, for things like freedom from arbitrary arrest and a fair trial regardless of the lawyers’ personal thoughts and considerations.

The ethics of the legal profession always trump a lawyer’s personal thoughts and feelings and those of the public.

As advocates we are professionally and ethically bound to aid the client with ardour in presenting his side of the case. The state sustains the burden of proof regarding guilt

St. Thomas Aquinas warned that the moral theologian “has to consider the circumstances” of a human act before he calls it “good” or “bad” – the human act being what the defence lawyer does.

The adversarial system of administering justice, the rules of ethics and procedure, become the circumstances under which the trial advocate works.  Any look at the ethics of legal advocacy must refer to the lawyers’ rule of ethics and code of conduct.  We act by those ethical codes.

The need for skilled and honourable advocates is an accepted and fundamental part of our criminal justice system in Australia as it is in the USA.

Such were the three men who defended Louis XVI – Malesherbes, Tronchet & de Seze – skilled and honourable advocates, who came forward and defended him knowing they put themselves at risk.

That’s what we do as criminal lawyers, step up and advocate for those less popular in society no matter the risk of criticism, ostracization or hate.

Under the circumstances one would regard Louis XVI’s lawyers’ acts as ethical and morally good.

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