Robespierre's tail: the possibilities of justice after the terror.
On 10 Thermidor Year II (28 July 1794), the guillotine returned to the center of Paris. Late that afternoon, it dispatched in rapid succession Robespierre and twenty-one of his acolytes. In less than two hours, the Place de la Revolution was again bathed in blood. Another seventy-one "Robespierrists" followed the next day, and twelve more the day after that. All 104 men were executed without trial because the National Convention had declared them "outside the law." (1) Not putting these men on trial made the parliamentary coup easier to consolidate. It also made it harder to justify. Although the Revolutionary Government had recently managed successful show trials of the Dantonists and Hebertists alike, putting over a hundred Robespierrists on trial would have been far riskier. And yet, not putting them on trial also had its risks. This lack of a show trial meant that it would take months to write and rewrite the significance of 9 Thermidor. Its eventual meaning as the end of the Terror was not intended at the time; in fact, the Terror itself had yet to be defined. Defining the Terror defined the Thermidorians. Both emerged from the crackling tension between politics and justice that determined the trajectory of the National Convention from the overthrow of Robespierre to the start of the Directory fifteen months later. More precisely, it was the Thermidorians' failure to create an effective form of transitional justice, one that combined retribution, restitution, and amnesty, that defined them and their regime.
Transitional justice requires balancing clemency with selective punishment. The punishment is usually done in the name of victims and therefore called "retributive justice." Every historical situation produces a different combination. Nonetheless, the goals remain much the same: to enable the new regime and its foundational principles to take hold and to begin national reconciliation. Fulfilling both objectives inevitably leads to political distortions of criminal justice. The survival of the new liberal regime is paramount, and requires overcoming a legacy of violence and fear. Judicial mechanisms play an especially important role by providing alternatives to popular vengeance or political vindictiveness. And yet, transitional justice always involves a compromise between the rule of law and political expediency. Recent experiences of making the transition from illiberal to liberal regimes reveal the many different modalities of this compromise. This variety of experiences has led to a general, if sometimes largely theoretical, acceptance of the need for explicitly transitional justice in one form or another. (2)
The Thermidorians were pioneers in exploring the complexities of transitional justice, and yet historians have done little to analyze their efforts from this perspective. Instead, they have either painted the entire period of the Thermidorian Convention as one of mounting reaction, or they have reduced their response to the discursive mists of collective memory. Both views have their roots in the venerable work of Edgar Quinet. Quinet asserted that the Thermidorians should have assumed collective responsibility for both the military victory and the bloody coercion of Year II; then, using the immense authority given them by military victory, they should simply have decreed that the Terror be forgotten. "I do not know if, after so many scaffolds, it would have been possible for such men to order forgetfulness and have themselves obeyed," he wrote, "I do not know if that did not exceed the limits of human possibility. What is certain is that they alone could have succeeded; their duty was to try. They did the complete opposite. Their justice was essentially Pharisaic, worse yet, it was nothing more than vengeance ... Out of the heart of this false and criminal justice came, for the first time, this strange new word: the Reaction." (3)
Quinet's final observation became the basis for Albert Mathiez's, La Reaction Thermidorienne (Paris, 1929). To Quinet's emphasis on republican hypocrisy and a thirst for revenge, however, Mathiez added social reaction and outright royalism. The resulting cocktail became the preferred drink of most historians for the next half century. (4) More recent scholars, however, have chosen to develop Quinet's emphasis on forgetting. In their important revisionist history of the French Revolution, Francois Furet and Denis Richet entitled one of their chapters, "Thermidor ou l'impossible oubli." This was echoed in a later paper by Mona Ozouf, "Thermidor ou le travail de l'oubli." These authors, in an odd avoidance of the obvious, did not discuss the frequent pairing of the words oubli and amnistie by the Conventionnels themselves, a pairing which clearly sought to avoid dissociating collective and personal responsibility for the exceptional measures of 1793-94. (5) These scholars prefer the broad politics of collective memory to the gritty particularities of transitional justice. Neither the all-encompassing concept of a Thermidorian Reaction nor a focus on forgetting helps to explain the tension between justice and politics, between the desirable and the doable, that determined the first republic's trajectory from the moral quagmire of radical revolutionary expediency to the flawed attempt to anchor the republic in constitutionalism and the rule of law during the early Directory.
In other words, most scholars have been either parti pris or dans l'oubli when it comes to the complexities of justice after Thermidor. (6) Bronislaw Baczko astutely observed that 9 Thermidor was "an event in search of its meaning" and so traced the ways in which the Convention progressively repudiated the Terror. (7) However, his most recent analysis reduces the Thermidorians' efforts to confront the aftermath of the Terror to a combination of judicial revenge, popular massacre, and political self-perpetuation. (8) This interpretation ignores Sergio Luzatto's lucid study of Thermidorian political culture, which convincingly replaces the shopworn notion of a coherent "Thermidorian Reaction" with a sophisticated exploration of the Thermidorians' desperate efforts to establish their political legitimacy by appealing to public opinion. (9) Such critical analysis makes it easier to understand why the Thermidorians could not create political legitimacy simply by turning to the rule of law and the Constitution of Year III (passed in August 1795); they needed broader public support, and that required an effective form of transitional justice. As pioneers in the problems of transitional justice, however, the Thermidorians explored many of its compromises without accepting the need for them. Of course, they did not have the benefit of modern examples. Thus, viewing Thermidorian responses to the so-called "Reign of Terror" as an unprecedented education in transitional justice makes us appreciate the difficulties of their predicament. Only by tracing the National Convention's tortuous path from the rhetoric of justice developed to justify the parliamentary massacre of Thermidor to the utter negation of justice--that is, to the flawed amnesty that launched the Directory--do we become aware of the sincerity, and not just the cynicism, with which the Thermidorians confronted the problems of transitional justice. Only then can we begin to see the possibilities of justice after the Terror.
II. Justice as Rhetoric
Fear and self-preservation inspired the events of 9 Thermidor, not a desire to change the regime. It was kill or be killed. Briefly replacing the triumvirate of Robespierre, Saint-Just, and Couthon with the triumvirate of Barere, Billaud-Varenne, and Collot-d'Herbois did not constitute a change of political agenda. Almost all of the revolutionary institutions and practices that constituted "the Terror" continued well after Thermidor. Only the rhetoric used to justify the coup made it the end of an era. (10) At first, Bertrand Barere, official spokesman of the victors, assured the nation that the "partial commotion" of 9 Thermidor left the revolutionary government entirely intact. Within days, however, he began advocating reforms, including "substituting inflexible justice for stupid terror." He spoke of "putting justice on the daily agenda," knowing that his audience would contrast it with putting "terror on the daily agenda" in September 1793. (11) Describing Robespierre as yet another tyrant soon metastasized into a more complex description of his rule as an especially nefarious way of exercising power, one to be carefully distinguished from revolutionary government. Jean-Lambert Tallien, himself a notorious representative on mission in 1793, presented Robespierre's regime as a "system of terror," which he defined as using absolute power to multiply arbitrary executions until everyone feared for his life. Such a system contrasted with "revolutionary government," which meant punishing traitors and thereby intimidating those who opposed the revolution. (12) Thus, rather than immediately abolishing the Revolutionary Tribunal, the Thermidorians merely revoked the notorious law of 22 prairial II (10 June 1794), which had sent executions soaring in the previous six weeks, purged its personnel, and authorized acquittais on the basis of "criminal intent." (13) But even the revamped tribunal remained a travesty of judicial norms. If revolutionary justice defined the Terror, then the Terror did not end on 9 thermidor II.
All the same, developing a discursive dichotomy between a "reign of terror" and a "reign of justice" to legitimize the overthrow of Robespierre had practical consequences: it forced the Thermidorians to respond to demands for an easing of repression. Shortly after the coup, the governing committees began to relieve the pressure on the teeming prisons of Paris by releasing many "suspects" who had yet to be charged with a crime. This practice quickly spread to the provinces, where some releases were regulated by philanthropic commissions and others came pell-mell. (14) These hundreds and soon thousands of newly freed prisoners clamored for revenge and demanded laws to punish their persecutors. A wave of publications trumpeted the continuing dangers posed by "Robespierre's tail"--those who had operated the "reign of terror"--and demanded swift retribution. (15) Despite mounting public pressure, the Convention managed to thwart such demands for several months. It did so by hewing to a centrist policy, granting neither amnesties nor indictments. (16)
Members of the Convention had good reason to hesitate. They were deeply implicated in the coercive measures of Year II, both as legislators and as representatives on mission, and so they needed to develop a more elaborate exculpatory narrative than that of a Robespierrist "system of terror." In other words, the Convention needed to write its past in a way that would safeguard its future. This. would mean trying to gerrymander a boundary between those actions and institutions that had succeeded in repelling foreign armies and defeating domestic revolt, and those that had fueled internecine strife, encouraged "excesses," and fostered "arbitrariness." Therefore, in addition to defining the "system of terror" and blaming it on "Robespierrists," the Thermidorians explained the coercive measures adopted in 1793-94 as necessary actions forced upon them by the crisis-ridden circumstances of foreign war and domestic revolt. For a time, the majority in the Convention agreed to share responsibility for these regrettable, but essential measures. "You adopted everything and you decreed the system of terror," Pierre-Joseph Cambon reminded his colleagues before inviting them to retrace the events that had "compelled us to pass a lot of laws contrary to our principles." (17) But this tension between past and present could not be sustained.
III. Justice as Retribution
The massive release of prisoners and the new freedom of the press rapidly eroded solidarity regarding how the recent past was perceived. A mere three weeks after endorsing the "thesis of circumstances" and its concomitant cover-up of terrorist crimes presented by Robert Lindet on 4 jour sans-culottides II (20 September 1794), the Convention suddenly changed tack and steered toward retributive justice, that is, toward legal punishment undertaken in the name of victims rather than in defense of the republic or the social order. The Convention's Adresse au peuple francais of 18 vendemiaire III (9 October 1794) marked the end of collective responsibility by vehemently repudiating Jacobins and former operatives of the Terror. Although the Adresse has been read as a call for popular vengeance, such a view ignores the emphasis it placed on the Convention's role in providing both law and justice. (18) "We will be able to spare error and strike crime," stated the Adresse, adding, "All of the government's acts will bear the stamp of justice." In lieu of collective responsibility came a rhetorical distinction between errors and crimes, a distinction designed to replace impulsive, popular revenge with a policy of measured, judicial retribution. (19)
The Convention's first formal step toward retributive justice famously came when the trial of the Revolutionary Committee of Nantes by the Revolutionary Tribunal of Paris implicated Jean-Baptiste Carrier in extensive atrocities committed during his mission to the Vendee in Year II. The Convention devised an elaborate impeachment procedure for deputies and then immediately applied it to Carrier. (20) Carrier was intended to be a scapegoat for the Convention's policy of unrestrained repression in the Vendee, but putting him on trial also meant repudiating shared responsibility. Moreover, the excruciatingly long trial of Cartier and the Revolutionary Committee of Nantes revealed the full brutality of repression in the west. Though a farce in procedural terms, the trial made the mass drownings in the Loire one of the most famous episodes of the Terror and thus did irreparable damage to the reputation of the Revolutionary Government of Year II. Thermidorian rhetoric had generated the idea of a "system of terror," but it took Carrier's trial to tutu officials of the revolutionary government into terroristes, monstres, cannibales, and buveurs de sang. (21)
The Convention took another step away from collective responsibility when it rehabilitated the Girondins. By inviting seventy-three "protesting" Girondins to retake their seats, the Convention rejected previous justifications for much of the Terror. It was only a matter of time before the Convention also readmitted the thirteen surviving fugitive Girondins who had been declared "outside the law" in June 1793. (22) The official return of the Girondins transformed the seizure of power by an alliance of sans-culottes and Montagnards on 2 June 1793 from a revolutionary triumph into the start of a system of collective criminality now dubbed "the Terror." Pierre-Louis Bentabole warned his colleagues that to recall the Girondins was to condemn themselves "since [they] all participated in the Terror." (23) Nonetheless, the majority in the Convention rejected his logic. In doing so, they repudiated once and for all any shared responsibility for the "system of terror." Moreover, rehabilitating the Girondins signaled a desire on the part of a majority of deputies to confront the explosive question of who among them was to blame for the horrors of 1793-94. By this time, the Convention had accumulated an archive of accusations against its members, especially those who had served on the two "great committees" or been representatives on mission during Year II. Thus, the return of the Girondins, such obvious victims of the Revolutionary Government, tipped the Convention toward retributive justice.
The two-part trial of Fouquier-Tinville, the chief prosecutor of the Revolutionary Tribunal in 1793-94, added to the momentum in favor of retributive justice. The trial exposed the chicanery and manifold abuses behind the moralistic facade of revolutionary justice. Moreover, the former prosecutor's claim that he was merely following orders further discredited the Revolutionary Government while also failing to cover his own deadly machinations. As a result, Fouquier-Tinville and fifteen other former members of the court were condemned and guillotined. By then, a trial originally intended to deflect criticism from the Convention for the excesses of revolutionary justice had instead provided evidence of broader culpability. In fact, Fouquier's published defense supplied key evidence against surviving members of the "great committees" of Year II. (24)
Carrier and Fouquier-Tinville, as well as their co-accused, presented cogent arguments for shared responsibility in the Terror. Above all, they cited the exigencies of saving the revolution, the laws of the Convention, and the orders of its committees as the basis for their actions. Rather than limiting the scope of retributive justice, however, their trials only inflamed demands for revenge. The Thermidorians had used the rhetoric of justice to set their regime apart from the previous "system of terror"--despite the major overlap between them--but in doing so, they had made it impossible to follow their colleague Pierre-Florent Louvet's advice "to draw an impenetrable curtain over the errors in which the Convention and the entire people had been accomplices." (25) What Louvet had called errors, others now called crimes; where he had found general complicity, others now searched for individual responsibility. As a result, the Thermidorians' rhetoric of justice led inexorably to retributive justice at the highest level.
Once the Convention abandoned the "thesis of circumstances" to justify the coercive measures of 1793, deputies began to insist on punishing the so-called grands coupables of the two governing committees. They argued that such retributive justice would set an example for others both "to denounce crime" and "to pardon error." (26) The actual debate on impeaching the four "great guilty"--Collot-d'Herbois, Billaud-Varenne, Barere, and Vadier--had the atmosphere of a football match. The Convention's balconies filled with partisans cheering raucously and singing rival anthems. A week of charges and counter-charges, hot invective and sinister insinuation, broke the solidarity of the former committee members. Before the Convention voted, however, subsistence riots erupted in Paris. The riots of 12-13 germinal III had threatening sansculottes overtones, which inspired the Convention to abandon its procedural scruples and simply to decree retribution. As Garnier de l'Aube intoned, "When it's a matter of repelling tyranny, we do hOt need to proceed according to forms. Did we use them to carry out 9 thermidor?" (27) In this spirit, the Convention brushed aside the rules on impeachment adopted to safeguard deputies and ordered the immediate deportation of the four grands coupables. Decrees ordering the arrest of another fifteen deputies, almost all aggressive representatives on mission in Year II, quickly followed.
Had the Convention been able to conduct public trials of these "terrorists" in its midst, it might have slowed the drive to reactionary revenge. Some of these men had displayed an arbitrariness and brutality that would be hard to justify, but others could make a convincing case that they acted in defense of the revolution and within the letter and spirit of their orders. But no such trials took place. Instead, the massive sans-culottes uprising of 1-2 prairial III compelled the Convention to extend its purge from those deputies plausibly responsible for the excesses of the Terror to numerous Montagnards who continued to defend the Terror as a necessary policy in the crisis of 1793. The Convention's defeat of the Prairial uprising ended its attempts to restrict retributive justice to a few leaders. In the following two weeks, as the authorities of Paris rounded up some 2,000 sans-culottes, the Convention ordered the arrest of forty-three more deputies. This purge included all but three members of the two "great committees." A new tone had been set, a new consensus created. Pierre Henry-Lariviere, one of the outlawed Girondins, advocated prosecuting these men in the name of "national vengeance," and Benoit Gouly, himself a former Montagnard dechristianizer, cynically supported it as "a great act of justice." (28)
Thus, the sans-culottes riots in the spring of 1795 marked a decisive turning point in the evolution of Thermidorian justice. The Convention had already rejected justifications based on emergency circumstances, repudiated arguments about shared responsibility, and engaged in scapegoating. Before the riots intervened, the Convention was en route toward a form of limited retributive justice. This would have brought formal trials for at least some members of the great committees, a handful of representatives on mission, and a few dozen judges on the bloodiest revolutionary courts. There is reason to believe that limited retributive justice of this sort might have helped substantially to transition to a more moderate republic genuinely rooted in the rule of law. Scholars who have studied various forms of transitional justice in the late twentieth century have determined that its effectiveness in consolidating a new regime does not depend on the number of convictions or even the percentage of them. It is more important for the new regime to articulate and implement a clear policy of retributive justice. Such a policy of limited retributive justice then serves to establish the credibility of the new regime in both political and moral terms. (29) Equally important to a successful transition is limiting the extent of retributive justice in order to prevent trials from encouraging a perpetual witchhunt and an interminable atmosphere of recrimination and reprisal. (30) But, in keeping with the events of Thermidor itself, the Convention chose not to give the "terrorists" in its midst a proper show trial.
IV. Justice as Revenge
The Parisian riots in the spring of Year III erupted just when the issue of revenge had begun to overwhelm politics in the provinces. The Convention's handling of the grands coupables and the rioters of Prairial helped to forge a national consensus in favor of an aggressive policy of punishing "terrorists." During the political reaction that developed after the riots, "justice" as a moral concept was turned into a political program careening through society without any moorings in the legal system. This is the climate in which the Convention finally had to try to make a transition from the Terror, defined as arbitrariness and tyranny (in other words, anti-justice), to justice--only not justice in the moral sense, but as applied by institutions imbued with the basic premises of the rule of law (that is, anti-politics). The turning point of Prairial also reduced the form of retributive justice from prolonged show trials to hasty condemnations. Rather than extend the life of the Revolutionary Tribunal--now an execrated symbol of the Terror--the Convention resorted to a military commission to try the "last Montagnards" of Prairial. Soldiers, not jurors, condemned six deputies to death before they had any chance to develop a defense. This set a trend. Henceforth, military courts replaced revolutionary tribunals as the French republic's chosen instruments of exceptional justice. (31)
The trials of Carrier and Fouquier-Tinville made all victims of the Robespierrist regime appear innocent and all its agents appear guilty. This could only help to legitimize the widely asserted right of popular revenge. (32) The return of the Girondins inspired the National Convention to aid and abet the growing reaction in the provinces. Under their influence, the Convention ordered all officials purged since Thermidor to return to their native towns and villages to be put under administrative surveillance. After the uprising of Germinal, the Convention ordered these "terrorists" to be disarmed, deprived them of civic rights, and barred them from public office. The intense localism of eighteenth-century France made this forced return home especially dangerous. Republican militants suddenly became political pariahs deprived of weapons and turned into suitable targets of popular abuse: men to be cursed, spat upon, beaten and murdered. In essence, the law created a new category of "suspects" and led to thousands of arrests carried out under the aegis of reactionary representatives on mission. (33) This nationwide round-up of Jacobins and henchmen of the Terror gave citizens an opportunity to avenge themselves. Most famously, a wave of"White Terror" washed down the Rhone Valley and along the coast of Provence, a region subjected to especially bloody repression in 1793 and possessed of a thriving culture of vendetta. Mobs massacred scores of prisoners at Lyon, Bourg, Lons-leSaunier, Saint-Etienne, Aix, Marseille, Tarascon, and Nimes. Not only did local officials fail to prevent these sporadic killings, they often connived to make them possible. To cite but one example, local authorities stood by while an angry mob threw twenty-five prisoners from the roof of the medieval castle at Tarascon into the Rhone River fifty meters below. A month later, another twenty-three were massacred, many consumed by a raging tire in their cells. (34) The spectacular slaughter of prisoners was accompanied by thousands of individual killings and lesser assaults.
The sheer scale of the White Terror convinced some people that this was the work of conspiratorial royalists and indicated counter-revolution on the march. Alarmed republicans vociferated about compagnies de Jesus and compagnies de Soleil, supposed paramilitary death squads organized and funded by emigres whose strings were pulled from beyond the frontier. The growing mass of returned emigres and refractory priests lent credence to these claims. So did the occasional appearance of such confirmed conspirators as the Marquis de Surville and Dominique Allier. Whatever their political ambitions, however, such men simply rode a wave of anti-Jacobin or counter-terrorist revenge. (35) The brutal violence of 1795 was not committed by lone fanatics or anarchic mobs, but by groups of people bound together by a common sense of outrage at the excesses of local Jacobins. Once the community was no longer at the mercy of a handful of republican militants, it succumbed to a violent urge to punish them. Those who took the lead had suffered personally during the Terror, and their targets were individuals well-known in the local context. (36) Thus, the White Terror was broadly anti-republican, but it was not explicitly counter-revolutionary: the sense of righteous killing far surpassed other political objectives.
The prison massacres and swelling tide of vengeance prompted the Convention to try to preempt these popular killings by authorizing extensive, rather than limited, retributive justice for revolutionary excesses. On 4 messidor III (22 June 1795), the Convention ordered the immediate arrest and prosecution of anyone accused of unauthorized political murders committed since 1 September 1792. This law once again truncated judicial procedure. It sidestepped grand juries, reduced convictions to a plurality of jurors, and called on prosecutors and judges to remain on continuous duty. Deputies hoped that such expeditious proceedings would stem the tide of vigilantism. This proved a vain hope: even streamlined judicial proceedings could not act fast enough. The new legislation failed to produce many condemnations. The first convictions only came seven weeks later, when the criminal court of the Marne condemned two men to death and two to twenty years in irons for the massacre of priests at Reims in September 1792. (37)
The law of 4 messidor III may have spurred the prosecution of a few septembriseurs, but it did nothing to address the problem of prosecuting former functionaries of the Revolutionary Government, thousands of whom languished in local jails around the country. In response to this growing backlog of Jacobin prisoners, the Convention's governing committees proposed ordering district courts to expedite the cases of all those arrested "as a measure of general security." These local courts were supposed to choose between immediate release, misdemeanor penalties, and felony prosecution. However, a majority of deputies rejected this proposal on the grounds that initiating a mass of criminal proceedings at the grass roots would merely inflame political passions. They were concerned above all that using such courts to try supposed "terrorists" would be turning them over to men whose hearts contained "the seed of vengeance for the wrongs they had suffered." As a result, "the spirit of vengeance would smother the spirit of justice." (38) In this, the Convention showed unusual astuteness. The district courts of 1795 were deeply enmeshed in the local politics of victimization. Had they been left to decide the fate of their own "terrorists," there is little doubt that they would have generated the same prolonged climate of recrimination and manifest inequities that have plagued attempts at mass prosecution conducted at the local level in the late twentieth century. (39) The Convention's rejection of this proposal is evidence that, rather than indulging in the passion of revenge, as Bronislaw Baczko would have it, the Thermidorians recognized its dangers and struggled desperately to contain it.
V. Justice as Clemency (Almost)
Having rejected the use of local courts to handle accusations against former officials, the Convention voted unanimously (!) to create a national clemency commission composed of twelve deputies elected by secret ballot. The commission would sort out "oppressed patriots" from genuine "terrorists." (40) The proposed clemency commission was clearly intended to facilitate a process of national reconciliation by sharply limiting the scope of retributive justice. But the idea infuriated many of the sections of Paris. Once bastions of the sans-culottes movement in Year II, these microcosms of municipal politics had been commandeered during Year III by moderates, often with the aid of thuggish dandies known as the "Gilded Youth." The new section leaders had no intention of reconciling with the men they had fought to oust from powerful surveillance committees and section assemblies. News of the clemency commission prompted several Parisian sections to send angry deputations to the Convention, where they decried its blatant usurpation of judicial authority. Girondins took advantage of the protest to denounce the clemency commission as a blatant attempt to pardon terrorist crimes. After several raucous sessions, including an embarassing brawl with petitioners, the Convention canceled its proposed commission. Instead, it simply authorized the Committee of General Security to release any would-be "terrorists" who were not already being actively prosecuted under the criminal code. The need to deal with thousands of such men, however, required another decree ordering all political prisoners to be formally arraigned and presented to a grand jury, where they would be either indicted or released. (41) An indictment would lead to a trial before a department criminal court, rather than before the lower and more politicized district courts. Such a solution may have fit with the longer-term goal of founding the republic on the rule of law, but it deprived the Convention of an opportunity to take the lead in combining widespread clemency with a significant, but limited retributive justice. Deputy Dubois-Crance had called upon the Convention "to take a position and put itself between all the parties," but his colleagues simply lacked the unity of purpose to heed his advice. (42)
The Convention's failure to create a mechanism to balance clemency and limited retributive justice also resulted from the desperate battle for survival among the deputies themselves. The rising personal stakes twisted the debate over the clemency commission into demands for a greater purge of "terrorist" deputies. In early August 1795, a report from the Legislation Committee led to the arrest of another ten deputies, all accused of abusing their power while representatives on mission in Year II. (43) Because the Convention did nothing to initiate either impeachment or prosecution, however, their fate remained as uncertain as that of the nearly fifty deputies ordered arrested after the spring riots in Paris. To add to the ethical dilemma, the Convention soon approved a new constitution which contained elaborate provisions for impeaching lawmakers. Although immune from prosecution in regular criminal courts, they would be brought before the High Court established exclusively for judging ministers, directors, and legislators. Having approved this mechanism for the coming regime made it awkward to proceed any less scrupulously with deputies currently under arrest. Equally, the mounting climate of revenge, expressed in prison massacres and mob lynchings, left no doubt that giving accused deputies a fair trial risked a violent popular backlash if they were acquitted. (44) The Convention had done little to forestall this mounting reaction and was now paralyzed by it.
Whatever the possibilities offered by combining a more limited amnesty with some form of retributive justice, immediate political concerns took precedence. Daily reminders of the many misdeeds committed in the name of the republic risked undermining confidence in it, even when given a new constitutional form. Moreover, many deputies sent on mission in 1793-94 had necessarily relied on a mix of local militants and shady traders willing to use any means available to accomplish the Revolutionary Government's goals in the provinces. If such men were put on trial for "excesses," they would not hesitate to invoke the mantle of superior authority. It would then be difficult to decide just where to cut the lengthy chain of responsibility leading from a village "terrorist" to a former deputy in the National Convention. Furthermore, actually implementing retributive justice in 1795 was enormously complicated by the ugly reality of widespread resistance to the republic and the internecine strife among revolutionary factions. Factional conflict between various strands of pro-republican sentiment had greatly fueled the Terror, but the repressive measures adopted in 1793-94 were also plausibly justified by genuine counter-revolutionary violence. Thus, on one hand, many victims of the Terror were, in fact, ardent enemies of the republic. On the other hand, many victims of the Revolutionary Government were either innocent bystanders or supporters of the republic who had opposed the excessive use of state-sponsored violence, men such as the Girondins and Dantonists. Under these circumstances it is understandable that the National Convention feared that any retributive justice would simply prolong factional turmoil.
VI. Justice as Rectification
Just as the Convention struggled to determine how to provide limited retributive justice without destroying the republic in the process, it also looked for ways to rectify "errors" produced by revolutionary justice. There has been no systematic study of Thermidorian efforts to rectify the "errors" and "excesses" of revolutionary justice, hence it has been largely lost from sight. And yet, many debates touched directly or indirectly on the issue of rectifying previous injustices. These were long and complicated, as well as laced with self-interest and personal acrimony. Furthermore, innumerable pamphlets engaged the same issues, generally with equal passion, but at greater length. The fruit of this prolonged search for some form of moral redemption for the republic after the Terror was a series of measures designed to rectify judicial errors and to restore property seized as part of unjust convictions and condemnations.
The many-headed crisis of 1793 had spawned numerous forms of exceptional justice: popular commissions, military commissions, revolutionary tribunals in Paris and the provinces, and criminal courts following "revolutionary procedures"--at least 134 institutions in all. Although there were no procedures for appealing verdicts (these were summary judgments, after all) the Convention did sometimes act like an appellate court in individual cases, even in Year II. After Thermidor, the handful of cases presented to the whole Convention allowed the Thermidorians to score political points by rectifying a few excesses of revolutionary justice while also highlighting the "system of terror." But as the number of requests for judicial rectification climbed ever upward, the Convention grew tired of pronouncing individual annulments and authorized its ,Legislation Committee to handle appeals. This approach helped to rectify scores of "injustices" by overturning verdicts. Before long, however, the Legislation Committee proved equally unable to cope with the task of rectifying injustice one tragic case at a time. (45)
Despite a spate of tears shed by widows and orphans in the Convention, and a growing back-log of petitions in the Legislation Committee, the Convention remained deeply concerned about the consequences of acknowledging the iniquity of revolutionary justice per se. (46) An acknowledgment of this sort could be taken as a repudiation of the republic itself and could well play into the hands of royalists. And yet, not doing more to rectify the injustices of Year II only encouraged individuals and communities to take their own revenge. The horrifying realities of this alternative finally forced the Convention to undertake wholesale rectification. It did so on 28 thermidor III (15 August 1795) by annulling collectively all sentences of"afflictive punishments" rendered using "revolutionary procedures" and against persons who were still alive. (47) Individuals judged and condemned between the founding of the Revolutionary Tribunal on 10 March 1793 and its reorganization on 28 December 1794 were to be transferred to the regular justice system. If a grand jury indicted them, they would face another trial. Although revolutionary justice had condemned thousands of persons to prison or hard labor, it remains unclear when or whether they were all released. (48) It is certain, however, that almost none of them was retried.
Being beheaded was an "afflictive punishment" that could not be rectified. Nevertheless, it was possible to restore to a victim's family the property and possessions seized at the time of his trial, provided it had not been sold, alongside land confiscated from the church and emigres, as biens nationaux. The Convention had voted as early as 20 frimaire III (10 December 1794) to suspend the sale of property belonging to those who had been guillotined, only to reverse itself two days later on the grounds that revising the past would endanger the future. The Convention had adopted a similar attitude later that week when it learned that Claude-Alexandre Ysabeau, one of its members on mission at Bordeaux, had created a commission to revise revolutionary verdicts and restore property to victims' families. On 25 frimaire III (15 December 1794), the Convention quashed the commission and its actions, and recalled Ysabeau to Paris.
The debate over restitution soared to new heights three months later, when Francois-Antoine Boissy d'Anglas, that paragon of Thermidorian values, delivered a long speech on 30 ventose III (20 March 1795) in favor of rectifying the judicial transgressions of Year II. Borrowing most of his arguments from Le cris des familles, a wildly successful pamphlet penned by the aging philosophe Abbe Morellet, Boissy d'Anglas argued that the republic had a moral obligation to victims of revolutionary justice that required returning their property to surviving family members. Such a position was radically reactionary, for it suggested that every execution in Year II had been a cold-blooded murder. A chorus of deputies objected, pointing out that many of those condemned by revolutionary justice had been genuinely guilty of counter-revolution, and so were not victims at all. Although such an argument fit the facts, it ran the risk of rehabilitating the Terror and thereby undermining the legitimacy of the post-Thermidorian Convention. Like a person in quicksand, the more the Convention struggled to escape this moral and political quandry, the further and faster it sank into it. Debating restitution of property for the condemned led ineluctably to debating the status of property confiscated from emigres and their immediate relatives. (49) Finally, after months of wrangling, the Convention took a hard line on emigre property and a soft line on the property of victims of revolutionary justice.
Restitution became reality on 21 prairial III (9 June 1795). "Considering the abuse people have made of revolutionary laws [and] the impossibility of distinguishing through revisions the innocent from the guilty," the Convention decided that property confiscated after the founding of the Revolutionary Tribunal on 10 March 1793 would be returned to victims' families. There were exceptions, however. The decree would not apply to those condemned as conspirators (including those who opposed Thermidor or perpetrated Prairial), emigres, armed rebels, counterfeiters, embezzlers of public funds, and the Bourbon and DuBarry families. Nonetheless, the Convention's attempt at rectification through restitution covered the property of thousands of people condemned and executed by revolutionary justice. (50) They now joined the tens of thousands who had fled France since 31 May 1793, but whose emigration had recently been decriminalized and who also had their property and political rights returned to them. (51) So far did the Convention go toward restitution for victims of the Terror that even refractory priests had their confiscated property returned. (52)
This massive revision of revolutionary justice and extensive restitution of property also encouraged efforts to rehabilitate the memory of those killed during the Terror. For example, a large cenotaph was designed to memorialize victims of the siege of Lyon in 1793. Furthermore, many of the relatives who petitioned the Convention for posthumous exoneration of their loved ones also sought a formal rehabilitation de la memoire. (53) But the Convention and its Legislative Committee refused to support such a process because it would have meant exonerating avowed opponents of the revolution. (54) In fact, by the autumn of 1795, even Thermidorian republicans were coming to a consensus that little good could come from memorializing the dead. If some deaths could not be justified, they were better forgotten.
VII. Justice Denied
As long as Thermidorian justice appeared in the form of revenge at the local level, or rectification and restitution at the national level, former servitors of the Revolutionary Government remained the focus of political turmoil around the country. The first step toward reducing their visibility was to curtail persecution. The debate over a clemency commission to protect "oppressed patriots" had revealed deep differences of opinion over the nature and extent of the reaction in the summer of 1795. Nonetheless, by the time the Convention moved to implement the Constitution of Year III, adopted in late August 1795, the groundswell of anti-republican fervor had become undeniable. In fact, the decision to require two-thirds of the seats in the new bicameral legislature to be filled by Conventionnels, off decried as selfish opportunism and a travesty of popular sovereignty, reflected a realistic appraisal of the country's mood. (55) Therefore, at the same time as deputies sought to preserve the republic by prolonging their time in power, they began to shield former agents of the Revolutionary Government from judicial sanctions.
The Convention first signaled its intention to obstruct the courts from prosecuting former government officials by annulling all of the recent judgments requiring them to pay compensation to victims subjected to property seizures, requisitions, or exceptional taxes during Year II. (56) This significant, but limited, action did not stop charges from being filed against members of now-defunct institutions of the Terror, such as surveillance committees or revolutionary tribunals, for abusing their powers. A wave of such prosecutions alerted the Convention's governing committees to an emerging judicial reaction. They responded by revoking the expedited procedures for use against septembriseurs and the decrees ordering the administrative surveillance and disarmament of officials who had served during the Terror. (57) The bloody crypto-royalist uprising of 13-14 vendemiaire IV (4-5 October 1795) against the Convention proved the seriousness of the threat posed by an anti-republican reaction. Not suprisingly, the insurrection inspired lawmakers to go even further in protecting revolutionary militants. First, they prohibited all civil or criminal judgments against officials who had ordered arrests under the Law of Suspects of September 1793. After all, responsibility for their incarceration lay more with those who passed the law than with those who dutifully applied it, even if the latter had at times abused their power. Second, the Convention prohibited prosecutions that were not based explicitly on the Penal Code of 1791 and ordered the immediate release of anyone arrested on other charges. These decrees annulled a host of indictments brought against Jacobins for such ill-defined crimes as "terrorism," "harassment," "oppressing the people," and "abuse of authority." (58) According to the Legislation Committee, such charges were inspired by "hatred, passion, factionalism, and a thirst for counter-revolutionary vengeance." (59) This provocative language went unchallenged by the deputies in attendance, itself a signal of how far the political pendulum had swung back toward the left in just a few weeks.
The Convention's growing sense of danger moved it from protecting officials of Year II to attacking their enemies. On 29 vendemiaire IV (21 October 1795), representatives on mission in the Midi were ordered to dismiss all mayors, reeves, justices of the peace, and public prosecutors who had not denounced or sought to prosecute the vigilante killers of Year III. A few days later the Convention passed the infamous law of 3 brumaire IV (25 October 1795), an omnibus bill of political exclusion. It extended into the Directory a recent law prohibiting all male relatives of emigres--that meant brothers, fathers, sons, uncles, nephews, grandsons, and even brothers-in-law--from holding political office. Those who failed to resign immediately were to be exiled from France for life. Furthermore, anyone who had signed a "seditious petition" during the recent national elections was also excluded from office. But the law of 3 brumaire IV went beyond tampering with election results: it revived the draconian laws against emigres and refractory priests first passed in 1792-93. Once again, all emigres and deported priests were subject to the death penalty, including those priests who had simply remained in hiding. (60) These massive exclusions from the body politic alienated moderates who had supported the early revolution, been threatened by the extremists of 1793-94, but were now seeking a modus vivendi with the republic. This was hardly a propitious climate for the Convention's final act, a supposed focus on forgetting.
Historians who have framed the Thermidorian response to the Terror in terms of collective memory have as their single most important piece of evidence the Convention's last decree: an amnesty for "acts purely related to the revolution" passed on 4 brumaire IV (26 October 1795). This decree ordered an end to all imprisonments, indictments, prosecutions, and trials undertaken for ostensibly political crimes. Advocates of the amnesty argued that it was necessary to pull a veil over the past in order to end factional recrimination and the violence it generated. Perhaps more important, when Pierre Baudin presented the bill to the Convention, he argued that it was necessary to "erase the memory of errors and mistakes that had been committed during the revolution." (61) This was to be a political act of amnesia--but a selective one. Both the national elections and the Vendemiaire insurrection had revealed the strength of the anti-republican reaction sweeping the country. The result had been the law of 3 brumaire IV. Given that the amnesty was adopted the next day, it was only logical that it excluded emigres, deported priests, and rebels of all sorts, including western guerrillas (chouans) and the insurgents of Vendemiaire. So biased was the amnesty in favor of republicans of all stripes that even an attempt to bar participants in the Prairial uprising from holding office failed to pass. The debate over the amnesty showed that it was intended only to cover pro-revolutionary crimes, those committed due to "an excessive zeal and blind rage for liberty." (62) Some even argued that the amnesty should be approved because it was hOt general, and so allowed the persecution of emigres, deported priests, and western rebels to continue. (63)
The amnesty of 4 brumaire IV completed the protection from judicial persecution afforded "terrorists" by the Convention's recent decrees. This protection came at the price of accepting an existing pattern of judicial negligence toward the revenge assaults of the "White Terror." The fact that the amnesty protected more revolutionaries than reactionaries, however, implicitly exonerated many of the crimes committed in the course of the revolution. In fact, the amnesty meant that it was no longer necessary to distinguish between crime and error, between excess and atrocity. Thus the Convention had been intimidated into abandoning its clemency commission, only to be panicked into a general amnesty a few months later. Naturally, the purely republican amnesty of 1795 proved a disappointing failure. As far as most historians are concerned, the amnesty was virtually a non-event. Rather than generating long lists of cases analyzed by a national clemency commission or a few dozen trials with voluminous records shedding light on the intricacies of the Terror, the amnesty has left historians bereft. This vacuum explains why the amnesty has been the subject of so little analysis. (64)
The idea of an amnesty did not appear suddenly as a republican deus ex machina in the waning days of the Convention. A year earlier, Lindet and Cambon had tried to keep a lid on the Pandora's box of retributive justice by arguing for the collective responsibility of all members of the Convention for les grandes mesures de l'an II. Although this had failed, the logic persisted, at least for awhile. In the early days of 1795, deputy Jacques-Antoine Boudin linked collective responsibility--including his own cowardice for not having opposed the "mesures atroces" voted by the Convention--to the impossibility of setting limits on retributive justice: if it were applied to revolutionary misdeeds, "it would be necessary to punish those who ordered them, as well as those who executed them, as well as those who approved of them." (65) The only just and equitable solution, argued Boudin, was a general amnesty for all political delicts related to the revolution. Although this had pleased many deputies, it inflamed Thermidorian opportunists such as Legendre, Lecointre, and Tallien, whose political ascendancy depended on scapegoating the four members of the Revolutionary Government they called the "great guilty." Thus, it was not until after the Vendemiaire uprising--that is, not until revenge had opened the door to a royalist reaction--that the Thermidorians came to realize the advantages of a general amnesty. By then, however, nobody in the Convention was arguing for assuming collective responsibility.
Instead, Thermidorian politicians who favored the amnesty hoped that it would limit the corrosive effects of revolutionary politics on the judiciary and thereby facilitate a transition to the rule of law. Giving "Robespierre's tail" the judicial equivalent of absolution was designed principally to end the internecine strife between various revolutionary factions in order to rally them to the new constitutional regime. The amnesty would serve as both a veil and a pardon which, wrote the judges on the Criminal Court of the Haute-Saone, "we expect to result in a sincere forgetfulness of the past, a perfect union of all French republicans, and an unalterable accord for the strengthening and prosperity of the Republic." (66) This statement bore an unusual air of sincerity because it came from conservative magistrates at the moment they applied the amnesty to Claude Vallee, the main organizer of the armee revolutionnaire in the Cote-d'Or, and three of his comrades. The Convention had adopted the amnesty precisely to save such local brokers of the Terror from court sanctions. The amnesty was also said to protect the institution of the jury from discredit by preventing cases in which juries would base their verdicts on political passions rather than the standards of the Penal Code. The drafters of the amnesty recognized that however good juries were in principle, they would always reflect the climate of opinion in which they operated. (67) As deputies well knew, that climate included a strong dose of anti-Jacobinism. Finally, the amnesty not only appeared to offer a way to escape the internecine strife between republicans and keep juries from turning vindictive, it was intended to prevent a much-feared judicial reaction against all forms of prorevolutionary activism.
VIII. Justice Tried
Deputies' fears of a massive judicial reaction were exaggerated, however. Like the humane Boudin eight months earlier, the opportunist Baudin raised the specter of endless repression when he presented the law on amnesty to the Convention. He claimed that punishing those who had operated hundreds of scaffolds and prisons would also require hundreds of scaffolds and prisons. In contrast to this overdrawn image, the actual extent of judicial reaction before the amnesty strongly suggests that the firm application of criminal justice would not have produced another hecatomb. True, a fair hearing probably could not have been had anywhere from Lyon to Marseille. (68) However, a basic feature of the judicial system allowed defendants to opt for trial in a neighboring department. On the other hand, former "terrorists" often elected to stand trial in their own departments if republicans still had strong influence there. Under these circumstances, men accused of committing crimes in the name of the revolutionary government received surprisingly lenient treatment at the hands of ordinary criminal justice. High-profile cases from around the country confirm this point. (69)
A major trial of eight leaders of the armee revolutionnaire of the Haute-Garonne ended just before the amnesty and offers something of a litmus test of judicial reaction. The charges included abuse of authority, inciting civil war, violating religious freedom, pillage, and armed robbery. In a bit of propagandistic piling-on, Pierre Delport, the constitutional priest of Beaumont dubbed capitaine sans-quartier, was even charged with rape. The trial opened at the height of reaction when the toulousain newspaper L'Anti-Terroriste pumped out a steady stream of denunciations and justified vigilante violence elsewhere in the south. (70) However, the trial was suspended for three weeks during the elections, and by the time it reconvened the paper had been closed, a sure sign that the tide was turning against reaction. The jury issued its verdict just after news of the Vendemiaire uprising reached Toulouse. By then, over 260 witnesses had convinced jurors that a contingent of the department's armee revolutionnaire had tyrannized Grenade in the autumn of 1793 by aiming cannon at the Hotel de Ville, forcing local dechristianization, raiding nearby chateaux, and ransacking opulent houses. As obvious as the facts became, however, the jury acquitted five of the accused, including the two civil commissioners, Claude-Louis Gelas and Francois Hugueny. Acquitting Hugueny had special significance because he had later presided over the Revolutionary Tribunal at Toulouse when it condemned a total of twenty-nine men to death and seven to deportation. Even the three convictions handed down in the trial of the armee revolutionnaire were only for theft and brought the minimum sentence of six years in irons. (71) Such leniency reflected the prevailing climate of opinion in Toulouse, where republicanism remained strong throughout the Directory.
In the western department of the Sarthe, a score of the most noteworthy terrorists of 1793-94 were charged with inciting murder and pillage at the Jacobin club in Le Mans. They spent four months in prison before finally being interrogated, an experience shared by thousands of Jacobins throughout the country. But few sarthois came forward to testify against them. Meanwhile, their leader, the brilliant young lawyer J.-R. Bazin, presented a clever defense of their actions, essentially making them cogs in a larger wheel of repression. When the two JPs at Le Mans heard about the Vendemiaire uprising in Paris, they dropped the charges and released the accused. Clearly, in zones of prolonged conflict such as the Sarthe, a general republican spirit prevailed over a desire for revenge, especially once the threat of open counter-revolution reappeared. (72) This spirit manifested itself even before the Convention had passed laws to protect members of revolutionary institutions from prosecution.
In the southern department of the Herault, judicial retribution concentrated exclusively on the perversion of justice during the Terror. In 1794, the criminal court had used revolutionary procedures to stage a massive show trial known as the affaire des galettes. Popular fears of internal subversion, especially amongst the artisan classes of Montpellier, had transformed the illegal baking of galettes during a subsistence shortage into a counter-revolutionary conspiracy. The court made every effort to obtain convictions, including choosing members of the jury from among those who had denounced the accused. These jurors then told others before the trial which of the accused they intended to convict. Two men and two women were duly guillotined. The whole case was reopened in 1795 and became the centerpiece of anti-Jacobinism in the Herault. The court president, the public prosecutor, and four members of the jury were put on trial for manifold illegalities in the case. Although over 100 depositions were taken during the summer, no charges were filed until mid-September. Even then, magistrates seemed reluctant to bring the case to trial. Another six weeks elapsed without action before the amnesty suddenly annulled it all. (73) In the end, those accused of heinous judicial murders merely languished in prison until the Directorial government finally insisted on their release. The Herault shared much of the political culture and polarized politics of the Midi, but still did not rush to judicial reaction in the summer and autumn of 1795.
Even the most atrocious crimes committed during the course of the revolution did not lead to judicial severity. This became especially clear six months after the amnesty. The law of 4 messidor III adopted in June 1795 had been aimed at prosecuting the septembriseurs of 1792, and so the criminal court of the Seine continued to prepare its case regardless of the amnesty. The new bicameral legislature endorsed the prosecution by amalgamating a number of investigations into a single trial of thirty-nine individuals held in the spring of 1796. The graphic nature of eyewitness testimony riveted and revolted jurors and observers alike. Nonetheless, only three men were convicted; each was sentenced to twenty years in irons for manslaughter. The jury acquitted thirty-six other men due to lack of evidence or, astonishingly, lack of criminal intent. (74) And yet theories of popular sovereignty or doctrines of the right to insurrection were conspicuously absent from the proceedings. Apparently the jurors considered the climate of fear at the time of the Prussian invasion in 1792 a sufficiently mitigating circumstance to expunge criminal intent.
Thus, the generally lenient verdicts reached before and after the amnesty suggest that even without it the judicial response to terrorist actions would have been far less severe than the expiring National Convention feared. This response has several explanations. The transition from revolutionary justice to the rule of law not only restored but enhanced procedural protections for the accused. Once answering the question of criminal intent (question intentionnelle) became mandatory in late 1794, it became technically difficult for juries to convict former terrorists and septembriseurs. In addition, the well-publicized excesses of the Midi and the rising tide of chouannerie in the west had encouraged republicans to drop some of their differences and rally together. Under these conditions, it seems that the amnesty did not in fact save many "terrorists" from the scaffold or even the bagne. Apparently, in many places, public obloquy and ostracism from local politics were deemed punishment enough. (75) Finally, traditional reluctance to participate in official justice due to the destabilizing effects it had on village communities also limited the prosecution of revolutionary excesses. Eighteenth-century villagers abhorred testifying in cases involving their neighbors. (76) Compelling villagers to testify in highly politicized trials would have forced each of them publicly to take sides, thereby broadening the already serious rift in the community and making it harder to paper over, even with the passage of time. Whatever their misdeeds, the social status of the men who had served the Revolutionary Government meant that they and their families would likely remain significant members of the community for years to come.
On the other hand, not punishing men who had violated traditional limits on the exercise of power left many people resolved to take their own revenge. Men who had been duly convicted for their terrorist activities and then amnestied were deemed especially legitimate targets. Although magistrates in the Haute-Garonne applied the amnesty to members of the local armee revolutionnaire who had yet to be tried, they were reluctant to free the three men already convicted of pillage. This was common enough, and it took a direct order from the minister of justice to get these men released. A few months later, however, one of them was almost shot to death in an apparent act of vengeance. Jurors sympathized with the three brothers charged with attempted murder, and so convicted only one brother of a misdemeanor. (77) Here is but one example of where the Thermidorians' failure to punish terrorist excesses served to foster yet more violence. As the deputy Simeon remarked, "So you don't want any more revolution? Well then, be aware that there is no emotion more revolutionary than vengeance." (78) Though no friend of the republic, he knew the climate in which it operated. The amnesty had been intended to protect Jacobins, but it unavoidably sheltered the cutthroats and lynch mobs of the White Terror as well. Furthermore, many judges displayed no more than benign regret at being unable to prosecute acts of anti-Jacobin violence due to a lack of willing witnesses. Magistrates who declined to prosecute anyone for the murder of former "terrorists" obviously supported local demands for retributive justice. But the amnesty of 4 brumaire IV forced them to choose between covering up revenge and enforcing the rule of law.
The Thermidorians' hope that an amnesty would dampen the spirit of revenge was bolstered by their naive emphasis on forgetting. Rouzet captured this obtuse thinking with his call for a pyre to be built in every commune in the country in order to burn all trial records, denunciations, and revolutionary acts prior to the amnesty. (79) This was worse than impractical. Any attempt to obliterate records of the myriad injustices caused by six years of upheaval would have made the nascent Directory appear more criminal than constitutional. As it was, by hot punishing perpetrators, the republic prevented victims from having their suffering officially acknowledged as injustice rather than mere misfortune. In other words, the amnesty silenced victims, at least in official terms. Without an opportunity to testify against their oppressors, or at the very least a public forum in which to reestablish their dignity in the eyes of the community through an act of magnanimity toward their oppressors, victims of the Terror remained torn between an act of revenge to restore their honor or a humiliating acceptance of their impotence. As a result, the amnesty provoked widespread resentment against the rogue republicans protected by it.
IX. Justice Renegotiated
The Thermidorians' efforts to manage lustration and retributive justice did not end with the Convention. The two-thirds law helped to ensure that most Thermidorian law-makers passed into the two legislative councils of the Directory. There they continued to confront the problem of balancing clemency with retributive justice in an effort to avoid the anarchy of popular vengeance. As Dubois-Crance, a staunch republican, wrote to Poultier, editor of the equally republican L'Ami des lois, on 27 floreal IV (21 April 1796): "I am angry that this citizen [another correspondent] thinks that not enough terrorists have been murdered. When we preach amnesty, we must show more humanity, but I say that if there are some guilty left, they must be delivered to the sword of the law.... This means of ending the revolution is better than that employed by the Companies of Jesus and of the Sun." In other words, it would be better to tamper with the amnesty than to let vigilante killings continue.
There are good reasons to think that instituting a form of limited retributive justice would have served the cause of republicanism better than the amnesty of 4 brumaire IV. In fact, many of the newly elected deputies, supported by some of those reelected from the Thermidorian Convention, insisted that retributive justice could be instituted by applying the Penal Code as well as authorizing victims to sue perpetrators. As the deputy Simeon put it, "an amnesty in political matters demonstrates the government's generosity, but in ordinary [i.e. criminal] matters, it demonstrates only its weakness." (80) In other words, many of the crimes covered by the amnesty did not deserve to be considered political and ought to be punished as violations of ordinary criminal law. Being an emigre and a closet royalist hurt Simeon's credibility with republicans, but he was making a valid point. His argument suggests that instead of adhering to the spirit of the amnesty, the Directory could have used the letter of it to provide a limited form of retributive justice and thereby win support for the republic. Thus, rather than projecting weakness through a sweeping amnesty, the fledgling Directory could have projected an aura of strength by creating a carefully tailored retributive justice.
How might such a policy have been formulated? Conceptually, retributive justice can be both general and specific. In the general sense, perpetrators are punished in order to avenge breaches of the law and public order. The punishment of crimes need not be tied explicitly to victims in order to take on a retributive quality. Under its new form, the judicial system could "avenge" crimes that had injured the republic. When a Justice of the Peace at Grenoble used the amnesty to release supposed members of the compagnie de Jesus from Lyon, deputy Pierre-Louis Bentabole demanded that they be rearrested and punished "in the name of the constitution, for the honor of the French People, and for that of the legislative body." (81) Here retribution was demanded not for individual victims, but for the new republican polity. Retributive justice usually has a more limited meaning, however: that of punishing perpetrators on behalf of their victims. Laws are not intended to eradicate feelings of revenge, but rather to contain them within the channels of retribution. When justice clearly acts on behalf of individual victims as well as on behalf of society, it respects the dignity of the victim and at the same time depersonalizes the punishment. Effective retributive justice essentially rationalizes vengeance, directing it as narrowly as possible at the most appropriate target and preventing further violence. Joachim Perez, himself imprisoned in 1793 on charges of federalism, raised just such an approach by stressing the government's potential role in restoring victims' dignity. He discomfited his fellow deputies in the Council of Five Hundred by presenting the issue in terms they could understand personally. "Once back in your departments, how will you respond to these weeping widows, these grieving orphans, who will come to you demanding to know why, regardless of all laws, you have allowed their fathers' and their husbands' murderers, with their impunity, the barbarous pleasure of mocking their distress? ... Only justice from the government can restore confidence, the true bond of social unity." (82) This eloquently summarized the widespread demands for vindication. Perez deliberately focused on widows and orphans as individuals generally unable to take revenge into their own hands, and thus highlighted the need for the government to mobilize the apparatus of justice on their behalf.
Thus, the Directory could have sought retribution in the name of the republic's key institutions by using a selective enforcement of the Penal Code to cover revolutionary excesses that had sullied republicanism. This would have provided conceptual justification for using the criminal courts to practice a form of retributive justice. Victims might not have considered such an approach sufficient personal vindication, but it would have been better than being officially silenced. Moreover, responding to the needs of victims would only have required making a link between criminal prosecutions and the limited provision for civil suits included in the amnesty of 4 brumaire IV. This may sound speculative and even counterfactual, but it is precisely what political debate at the time suggested as an alternative to the biased amnesty.
The amnesty was not only biased, it was badly written and incomplete. Whereas the law prevented anyone from being prosecuted for "acts purely related to the Revolution," it also specified that ordinary crimes committed during these years be punished according to the Penal Code. In cases where the charges pertained to both sorts of acts, only violations of the Penal Code were to be prosecuted. This extra verbiage did little to clear up ambiguities, however. Obviously the Penal Code covered murder and robbery, but were all killings and theft perpetrated by members of an armee revolutionnaire forgiven because this was a revolutionary institution? The Convention had left it to grand juries to deal with such thorny issues. Not surprisingly, the lack of clarity in the law produced widely varying results and provoked a number of petitions to the Ministry of Justice. (83) Furthermore, the amnesty contained no provision for appeal, did not address the crimes of soldiers, and explicitly prevented victims from suing for punitive damages. (84) Such restrictions left no legal recourse for people whose crops had been burned, animals killed, or buildings demolished. Besides, being able to file civil suits did not constitute the sort of justice that would have earned the Directory much-needed credibility. That depended on making a link to criminal justice and on providing further enabling legislation in the realm of civil justice.
The Directory soon recognized these flaws in the amnesty and asked legislators to amend it. (85) A legislative special commission responded with a clearer, more judicious proposal. This rectified the obvious flaws pertaining to soldiers and an appeals process, and also introduced a form of corrective justice by enabling the government to compensate victims for property damage. To avoid acrimonious civil suits, the republic would "buy public peace." (86) This approach had the virtue of letting courts operate on the principle that fault lay with the forms and practices of revolutionary government per se, which avoided holding any individuals accountable. An utterly empty treasury, however, made this otherwise attractive solution impossible. Before another means could be found, explosive news of Gracchus Babeuf's "Conspiracy of Equals" derailed debate for several months. In the meantime, the Directory's pacification of the Vendee extended the benefits of amnesty to chouans. This led lawmakers to seek a quid pro quo for soldiers and so revived the earlier amnesty debate. (87) By this time, politics had again become polarized, and the debate dragged on for days. Some wanted to broaden the amnesty while others fought to repeal it completely and have all crimes duly punished. The majority of deputies considered it both irrevocable and necessary, "a river that must be poured into a fiery abyss." (88)
Just when a much-improved version of the amnesty was about to be adopted, right-wing deputies ambushed the process. They argued that if murderers and thieves could benefit from the amnesty by construing their crimes as political, then it should be extended to emigres and their relatives, who had been deprived of their political rights simply due to their status at birth or because their fears of seeing the revolutionary regime restored had led to errors of judgment. In short, a proper amnesty would include repealing the law of 3 brumaire IV. Otherwise those with blood on their hands could be elected to office while a virtuous citizen, someone who might have sons in the army and have already held office during the republic, was excluded on the sole grounds that a brother or uncle had emigrated. Linking the laws of 3 and 4 brumaire IV blocked plans to improve the amnesty. Leftist deputies reacted with outrage and provoked two days of tumultuous debate. (89) Instead of rewriting the amnesty, the Council of Five Hundred formed a new commission to examine the law of 3 brumaire IV. Raucous and confused discussion continued sporadically for weeks. The whole spirit of amnesty evaporated amidst ominous cries of "To the Abbaye!"
This parliamentary tumult eventually dissipated, but at the price of a badly compromised bill. The new law embodied three distinct decisions that together significantly modified both the laws of 3 and 4 brumaire IV. First, deputies generally agreed that excluding the relatives of emigres from voting or holding elected office contravened the constitution, even though a majority casuistically defended the measure by arguing "that an apparent breach can sometimes conform to its spirit and be necessary for its defense," and so reduced application of this law strictly to emigres and their relatives. (90) This allowed individuals who had signed "liberticide" petitions as part of the Vendemiaire uprising to participate in the polity. Second, the bill broadened the amnesty to include the Vendemiaire rioters, as well as chouans and rebels now that civil war in the west had officially ended. This extenstion of the amnesty to crimes of anti-revolutionary resistance was the only logical response to deputy Thibaudeau's mordant critique of the law of 4 brumaire IV. "An amnesty must be complete," he argued, "because if it is partial, it is partisan; it is no longer a great act of national clemency, but impunity granted by the strongest party to itself." (91)
At the same time as deputies gave away more immunity from prosecution, they took away more rights to hold office. The exclusionary law of 3 brumaire IV would henceforth also apply to all those who had benefitted from the amnesty. This looked like a victory for reactionaries because most beneficiaries of the amnesty were former terrorists, even though right-wing deputies in the Council of Elders considered this inadequate compensation for continuing to exclude the relatives of emigres from the polity. Nonetheless, the resolution became law on 14 frimaire V (4 December 1796) thanks to an alliance between republican deputies who wanted to preserve the amnesty as a necessary means to end the revolution (and protect erstwhile allies) and moderate deputies who welcomed the opportunity to curtail the influence of Jacobins in the upcoming elections. (92) The result of this sporadic year-long debate, therefore, was to increase the scope of national clemency while also decreasing the pool of potential candidates for political office. The regime was seeking the juste milieu at the expense of a broad political base.
Expanding the amnesty to include groups of rebels and royalists made it more even-handed, but this did nothing to mollify victims. Any attempt at truth and reconciliation was culturally unthinkable, and retributive justice politically unpalatable. This left the Directory unable to win back the support of those who had been alienated from the revolution during the republic's first three years. It also left victims of revolutionary excesses little choice but to try to avenge their suffering or loss through violence and vendetta.
The Thermidorians' hope that an amnesty would rally republicans of all stripes, whatever their excesses or whatever their grievances, is understandable, but they were not prepared to live with the practical consequences. Within its first year, the Directory began a systematic police harassment of amnestied revolutionaries. This was not based on new crimes they had committed. In fact, the government's problem in dealing with challengers to its left was the leftists' ability to stir up discontent while remaining largely within legal bounds. The flawed amnesty, and the failure to reform it, led the government to focus police activity on specific types of revolutionary: former Montagnards, officers in the armees revolutionnaires, members of comites de surveillance, and so on. These groups become the subject of an increasingly sophisticated "preventive repression" in Paris and the provinces alike. In some departments, the police drew up lists of amnisties and put them under special surveillance. (93)
Despite the discursive dichotomy of terror/justice invented to legitimize the slaughter of 10-12 thermidor II, it took a full year of political tergiversation, thousands of pamphlets and petitions from victims or their families, extensive political purges, repeated disarmaments, and round-ups of revolutionary officials, as well as a massive wave of vigilante violence, before the Convention finally and formally repudiated the revolutionary justice of Year II. Doing so, however, was part of a serious effort to rectify injustices of the Terror. Much of this has been obscured by the blanket amnesty of October 1795. By eventually adopting an amnesty, the Thermidorians abandoned their long and often earnest search for a limited form of retributive justice. This ended the judicial investigation of crimes and atrocities related to the Terror and forced communities to resolve their internal discord with little help from the government.
Although the piecemeal anti-terrorist legislation of spring 1795 facilitated both vigilantism and a budding judicial reaction, the Convention responded by trying to establish a prudent form of retributive justice. However, the justification for failing to achieve this--namely, that it would foster a prolonged witch-hunt--was not supported by actual judicial activity at the time. As we have seen, procedural protections associated with a transition to the rule of law, as well as grass-roots concerns about the dangers of counter-revolution, limited the number of guilty verdicts in cases against former terrorists. Thus, in lieu of granting a full amnesty for revolutionary acts, a selective but effective application of the Penal Code could have helped to establish the moral authority of the new regime. The debate that unfolded in the early Directory revealed substantial support for this approach, including among staunch republicans. And yet, even trying to correct a few obvious flaws in the amnesty nearly brought lawmakers to blows once more.
The Thermidorians have been judged harshly, and not without reason. But they were pioneers in the practices of transitional justice and should be assessed accordingly. Even two centuries later, after dozens of fledgling democracies have struggled to find the right balance between retributive justice and political expediency, there is no clear formula, no perfect model. Furthermore, every case involves difficult and morally dubious compromises. This realization alone ought to persuade historians to abandon their caricature of Thermidorians as merely political cynics and social reactionaries. The Thermidorians' rhetoric of justice led inexorably to some forms of retribution as well as to rectification and restitution--and it very nearly led to a national clemency commission as well. That the commission was ultimately abandoned and then replaced by a flawed amnesty was not due to a Thermidorian politics of forgetting, but to the inability of Thermidorians to forget politics, even as they tried to refound the republic on constitutionalism and the rule of law.
I am grateful to Liana Vardi and Isser Woloch for commenting on two very different versions of this article.
(1) A declaration of hors la loi required only formal identification before the Revolutionary Tribunal to be condemned to death (Alphonse Dunoyer, Fouquier-Tinville, Accusateur public du Tribunal revolutionnaire, 1746-1795 (Paris, 1913), pp. 142-48). Most of the guillotined were members of the Paris Commune; for a full list, see Gerard Walter, La conjuration du Neuf Thermidor (Paris, 1974), pp. 313-17.
(2) For a wide-ranging set of cases that combines analysis with selected documents, see Neil J. Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes, 3 vols. (Washington, D.C., 1995); for an attempt to theorize experiences of transitional justice, see Ruti G. Teitel, Transitional Justice (New York, 2000).
(3) Quinet, La Revolution, 5th ed., 2 vols. (Paris, 1868), ii, pp. 239-40.
(4) Notably Georges Lefebvre, Les Thermidoriens (Paris, 1937), English trans. 1964; Albert Soboul, La 1ere Republique (1792-1804) (Paris, 1968); Denis Woronoff, La republique bourgeoise, de Thermidor a Brumaire 1794-1799 (Paris, 1972), English trans. 1984. This general interpretation remains common; for example, David Andress, The Terror: Civil War in the French Revolution (London, 2005).
(5) Francois Furet and Denis Richet, La Revolution francaise (Paris, 1965; 1973 edition), pp. 257-69; Mona Ozouf, "Thermidor, ou le travail de l'oubli," in her L'ecole de France (Paris, 1984), pp. 91-108. On the other hand, Sophie Wahnich addresses the issue directly, only to conclude that those deputies who called for an amnesty were not trying to avoid being held personally responsible for the Terror so much as they were trying to avoid "endless resentment" and an "unlimited pursuit of the guilty," see "La question de la responsabilite collective en l'an III," in Michel Voyelle, (ed.), Le Tournant de l'an III: Reaction et Terreur blanche dans la France revolutionnaire (Paris, 1997), pp. 85-97.
(6) Though he devoted little space to the issue, Michael Sydenham stands out for sympathizing with the Thermidorians' predicament and concluding that "whatever their achievement, their endeavour should command respect": The First French Republic, 1792-1804 (Berkeley, 1973), pp. 27-28.
(7) Bronislaw Baczko, Comment sortir de la Terreur: Thermidor et la Revolution (Paris, 1989), which does not, however, consider the consequences of not holding a trial.
(8) Bronislaw Baczko, "Une passion thermidorienne: la revanche," in his Politiques de la Revolution francaise (Paris, 2008), pp. 165-338.
(9) Sergio Luzatto, L'automne de la Revolution: Luttes et cultures politiques dans la France thermidorienne, trans, by Simone Carpentari Messina (Paris, 2001), with a preface by Bronislaw Baczko (!).
(10) See Francoise Brunel, Thermidor: La chute de Robespierre (Brussels, 1989), which treats 9 Thermidor almost as a non-event and argues that it took the anti-Montagnard offensive that began in November 1794 to determine the "Thermidorian" response to Year II.
(11) Reimpression de l'ancien Moniteur, 32 vols. (Paris, 163-1870) (hereafter Moniteur, Reimp.), xxi. 358, 369, 387 (11, 14, 16 thermidor II).
(12) Moniteur, Reimp., xxi. 612-15 (11 fructidor II). See Baczko, Comment sortir de la Terreur, pp. 69-83, and, in even more detail, his "'Comment est fait un tyran?' Thermidor et la legende noire de Robespierre" in Politiques de la Revolution francaise, pp. 133-64.
(13) Henri-Alexandre Wallon, Histoire du Tribunal revolutionnaire de Paris, 6 vols. (Paris, 1880-82), iv, pp. 260-75.
(14) As many as 3,500 prisoners were released in Paris alone (William Doyle, Oxford History of the French Revolution [Oxford, 1989], 282-83). For a lively overview, see D. M. G. Sutherland, The French Revolution and Empire. The Quest for a Civic Order (Oxford, 2003), pp. 234-39. A general release of agricultural workers had begun two weeks before the coup (John Black Sirich, The Revolutionary Committees in the Departments of France, 1793-1794 [New York, 1971], 187-200); the commissions philanthropiques were largely in the inner west (Ernest Lebegue, Boursault-Malherbe, comedien, conventionnel, speculateur, 1752-1842 [Paris, 1935], pp. 123-24, and Christine Peyrard, Les Jacobins de l'Ouest [Paris, 1996], p. 272).
(15) Bazcko, Comment sortir de la Terreur, 116-35.
(16) The Convention rejected attempts to indict former members of the two great committees on 12 fructidor II and again on 12 vendemaire III (Moniteur, Reimp., xxi. 620-23 [12 fructidor II], xxii. 138-42 [12 vendemiaire III]).
(17) Moniteur, Reimp., xxii. 139 (12 vendemiaire III). Sec also Ozouf, "Thermidor, ou le travail de l'oubli."
(18) Baczko, Comment sortir de la Terreur, p. 179 ff.
(19) The distinction between error and crime became a leitmotif of the period: for example, Boudin on 26 nivose III, "How can we distinguish what were actual crimes from what were only errors of the moment?" (Moniteur, Reimp., xxiii. 222).
(20) Moniteur, Reimp., xxii. 382-83 (8 brumaire III).
21 Jean-Clement Martin, "Vendee: Les criminels de guerre devant leurs juges," L'Histoire 209 (1997): pp. 52-7; Donald Sutherland, "Le Proces de Cartier: La Terreur blanche et l'echec de l'homme nouveau," in La Revolution francaise et l'homme moderne. Colloque international de Rouen, 13-15 octobre 1988, Claude Mazauric, ed., (Paris, 1989), pp. 517-24; Corinne Gomez-Le Chevanton, "Le Proces Carrier: Enjeux politiques, pedagogie collective et construction memorielle," Annales historiques de la Revolution francaise 343 (2006), pp. 73-92. So notorious were the atrocities committed by the Revolutionary Committee of Nantes that when the bulk of its members were acquitted by the Revolutionary Tribunal on the grounds of not acting with criminal or counter-revolutionary intent, the Convention felt compelled to order them (illegally) retried by a regular criminal court at Angers. They had yet to be tried, however, before the amnesty of 4 brumaire IV required their release from prison.
(22) Bronislaw Baczko, "Les Girondins en Thermidor" in Francois Furet and Mona Ozouf, eds., La Gironde et les Girondins, (Paris, 1991).
(23) Moniteur, Reimp., xxiii. 639 (18 ventose III).
(24) Dunoyer, Fouquier-Tinville, pp. 190-408; Linda Joan Christian, "The Social-Psychologieal Construction of the Revolutionary State and Fouquier-Tinville's Trial," Ph.D. dissertation, University of Manitoba, 2005.
(25) Louvet quoted in Baczko, "Girondins," in La Gironde et les Girondins, p. 49. Having failed to limit responsibility for the Terror to a handful of Robespierrists, Louvet took the position earlier espoused by Lindet and Cambon and tried to expand responsibility to include everyone in order to protect those who had taken the lead.
(26) See especially Merlin de Thionville, Moniteur, Reimp., xxiii. 549 (5 ventose III).
(27) Moniteur, Reimp., xxiv. 122 (12 germinal III).
(28) Moniteur, Reimp., xxiv. 570, 574 (9 prairial III). See Francoise Brunel, "L'epuration de la Convention nationale en l'an III" in Tournant de l'an III, pp. 15-26.
(29) John Borneman, Settling Accounts: Violence, Justice. and Accountability in Postsocialist States (Princeton, 1997), A. James McAdams, ed., Transitional Justice and the Rule of Law in New Democracies (Notre Dame, Ind., 1997); Kees Koonings and Dirk Kruijt, eds., Societies of Fear: The Legacy of Civil War, Violence and Terror in Latin America (London and New York, 1999). This position gains only limited support from the history of war crimes tribunals, however, because these depend on support from an international community: see Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (2nd edn, Princeton, 2002).
(30) See Martha Minnow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston, 1998).
(31) Howard G. Brown, Ending the French Revolution: Violence, Justice, and Repression from the Terror to Napoleon (Charlottesville, Va., 2006), esp. pp. 141-71, 221-33.
(32) Baczko, Comment sortir de la Terreur, pp. 191-245.
(33) For example, in just one day, the municipality of L yon alone arrested about two hundred suspected "terrorists," many whom were soon released, but scores of whom later died in prison massacres: sec Renee Fuoc, La reaction thermidorienne a Lyon (1795) (Lyon, 1957), pp. 116-22, and Bruno Benoit, "Chasser le mathevon a Lyon en l'an III" in Le Tournant de l'an III, pp. 497-508. The number of would-be "terrorists" arrested in Year III has never been the subject of any systematic calculation, and probably never will be due to the scattered nature of sources.
(34) Michel Vovelle, "Massacreurs et massacres. Aspects sociaux de la contre-revolution en Provence apres Thermidor" in Les resistances a la Revolution, Francois Lebrun and Roger Dupuy, eds. (Paris, 1987), pp. 141-50; Richard Cobb, The Police and the People: French Popular Protest, 1789-1820 (Oxford, 1970), pp. 131-50; papers in the section "Le Midi de la Terreur Blanche," in Tournant de l'an III, pp. 483-611. A summary of the latest work can be found in Stephen Clay, "Vengeance, Justice and the Reactions in the Midi," French History 23 (2009): pp. 22-46. On Tarascon, see P.-J.-B. Buchez and P.-C. Roux, Histoire parlementaire de la Revolution francaise (1838), xxxvi, 429-33; Robert Vignal, De la peste a la Revolution: Tarascon au AVIIIe siecle (Montpellier, 1989), pp. 187-92.
(35) Gwynne Lewis, The Second Vendee: The Continuity of Counter-revolution in the Department of the Gard, 1789-1815 (Oxford, 1978), pp. 90-98, emphasizes the conspiratorial dimension; Richard Cobb, Reactions to the French Revolution (London, 1972), pp. 19-43 questions the political motivation.
(36) Colin Lucas, "Themes in Southern Violence after 9 Thermidor," in C. Lucas and G. Lewis, Beyond the Terror: Essays in French Regional and Social History, 1794-1815 (Cambridge, 1983), esp. p. 177; D. M. G. Sutherland, Murder in Aubagne: Lynching, Law and Justice during the French Revolution (New York, 2009) closely analyzes the sources and consequences of the local factionalism that led to such cycles of revenge.
(37) Louis Mortimer-Ternaux, Histoire de la Terreur, 1792-1794, 8 vols. (Paris, 1862-81), iii, 623-24. A few prominent "terrorists," such as members of the commissions populaires of Bordeaux and Orange, had already been tried and condemned before the law of 4 messidor III, but they were few and far between. Henri-Alexandre Wallon, Les Representants du peuple en mission et la justice revolutionnaire dans les departements en l'an II, 5 vols. (Paris, 1890), v, 270-301. The trial of G.-F.J. Le Bon at Amiens and his execution on 24 vendemiaire IV was apparently the last of these trials: Louis Jacob, Joseph Le Bon, 1765-1795, 2 vols. (Paris, 1932), pp. 291-355.
(38) Moniteur, Reimp., xxv. 330-33 (quotations from Quirot and Berlier, 6 thermidor III).
(39) See Helena Cobban, Amnesty After Atrocity? Healing Nations after Genocide and War Crimes (Boulder, Colorado, 2007).
(40) The Convention's clemency commission would certainly not, however, have operated anything like the truth commissions established two centuries later in Chile and South Africa. The extraordinarily partisan and factually unreliable nature of the press in France in 1795 foreclosed any possibility that "truth telling" could facilitate national reconciliation.
(41) Moniteur, Reimp., xxv. 370-72, 388-89, 414-45, 423-24, 426-30, 613-15 (11, 13, 17, 19 thermidor III, 17 vendemaire IV).
(42) Moniteur, Reimp., xxv. 333 (6 thermidor III).
(43) Moniteur, Reimp., xxv. 438-40, 445-48, 452-56 (21 and 22 thermidor III).
(44) Pierre Vaillandet, "Apres le 9 thermidor: les debuts de la Terreur blanche en Vaucluse," Annales historiques de la Revolution francaise 5 (1928), pp. 109-27.
(45) For examples of different annulments, see Moniteur: Reimp., xxiii. 227-39 (27 nivose III). The laws of 29 nivose and 11 pluviose III empowered the Legislation Committee to make decisions about freeing people condemned for anything other than "ordinary crimes" or "acts of royalism" and to restore sequestered property. As a result, the Committee issued several dozen release orders each month and soon began annulling other judgments as well, including several issued by the Court of Cassation itself. See Jean-Louis Halperin, "Les decrets d'annulation des jugements sous la Convention" in La Revolution et l'ordre juridique prive: rationalite ou scandale?, Michel Vovelle, ed., (Orleans, 1988), pp. 457-68.
(46) See the sessions of 20 frimaire and 1 germinal III in Moniteur, Reimp., xxii. 721-2, xxiv. 289. Ronen Steinberg is the first to my knowledge to explore systematically petitions to the Convention. His findings were presented in two conference papers: "Restitution of Property, Rehabilitation of Memory: Undoing the Terror in France, 1794-1799," Society for French Historical Studies, Champaign-Urbana, Ill., April 2006; and "Defining Historical Injustice in Thermidorian France: the Problem of the Victims," Western Society for French Historical Studies, Albuquerque, NM, 7-10 November 2007.
(47) Moniteur, Reimp., xxv. 406-7. On 2 brumaire IV, the Convention extended the period covered by this law to 5 October 1795, that is, up to, but not including, the uprising of 13-14 venderniaire IV in Paris. All the same, this extension explicitly excluded sentences against emigres, chouans, rebels, or refractory priests, thereby preventing the Thermidorian forms of exceptional justice, such as the military commissions established after Prairial and then Quiberon, from being challenged .(Jean-Baptiste Duvergier, Collection complete des lois. decrets, ..., 30 vols. (Paris, 1834-38) viii, 344).
(48) Donald Greer, The Incidence of the Terror during the French Revolution (Cambridge, Mass., 1935), p. 30, enumerates the balance between death sentences and lesser penalties meted out be a hall dozen of the most famous commissions and tribunals, but eschews trying to establish a total figure and says nothing about Thermidorian releases or annulments.
(49) The law of 22 germinal III also redefined illegal emigration by readmitting all emigres who had fled France after 31 May 1793 (thus making this date the official start of the Terror). The new law whitewashed any participants in the Federalist revolts who had managed to escape the repression, notably the Toulonnais who sailed away in the ships of the Royal Navy. Not only were they no longer officially "outlaws," they had both their possessions and their political rights restored to them. Such a dramatic volte face gave "Federalists" the political and moral basis to justify a campaign of revenge. The debate on emigre property is insightfully analyzed by Luzatto, L'automne de la Revolution, pp. 167-76.
(50) Greer, Incidence of the Terror, states that about 16,500 people were executed according to revolutionary judicial procedures.
(51) The extent of restitution can be partially gauged by the abundance of material in the Archives Nationales, series BB30 90-113, which contains the directives of the Legislation Committee, and the series [D.sup.III], which contains the petitions, organized by department (for example, [D.sup.III] 90--HauteGaronne, [D.sup.III] 100--Gironde, etc.), that prompted these directives and which are scattered throughout more than two hundred boxes. These reveal that the Committee engaged in an increasingly systematic release of property to relatives and even provided compensation for heavy fines and expropriation of property during the Terror.
(52) Decrees of 14 floreal, 21 prairial, 22 fructidor III, 6 jour complementaire IV (Duvergier, Collection de lois, viii. 105, 134-36, 269-70, 284-85). All the same, it should be noted that property that had already been sold was reimbursed in vastly depreciated assignats and vouchers redeemable only on the purchase of emigre property, thereby stripping the gesture of much of its monetary worth. The massive difference in value between the vouchers and the value of the property was hOt compensated until the indemnity law of 1825 (Ludovic Sciout, Le Directoire, 4 vols. [Paris, 1895-97], i. 62).
(53) The point is emphasized in Steinberg, "Restitution of Property." Surviving victims, such as Andre Toebaerts of Bordeaux, whose brother was mistakenly executed in his place, often had numerous fellow citizens sign their petitions in order to prove that their reputations were in good standing (for example, Archives Nationales, [D.sup.III] 99, d. 4).
(54) See Archives Nationales, [D.sup.III] 100, liasse 6, pieces 58-70.
(55) Dmitri Bovykine, "Les decrets des 'deux-tiers': l'ambition des pouvoirs ou une mesure indispensable?," in Tournant de l'an III, pp. 43-53; Mona Ozouf, "Les decrets des deux-tiers," in Roger
Dupuy and Marcel Morabito, 1795.- Pour une republique sans revolution (Rennes, 1996), pp. 193-209.
(56) Duvergier, Collection des" lois, viii. 255 (16 fructidor III). This decree also forbade courts to judge administrative acts, which gave the executive branch an advantage over the judiciary by protecting officials from being criminally prosecuted by anyone other than the government itself.
(57) Decrees of 5 jour complementaire III and 12 vendemiaire IV in, Moniteur, Reimp., xvi. pp. 19-20, 117. For examples of compensatory fines assessed against former officials of Year II, see Mathiez, Reaction thermidorienne, pp. 220-21.
(58) Some verdicts were allowed to stand, but these were not political per se. For example, the leading "terrorists" of the Mayenne were convicted of "negligence, corruption and financial malfeasance" (Christine Peyrard, "La justice thermidorienne dans l'Orne" in Tournant de l'an III, p. 469).
(59) Decrees of 21 and 22 vendemiaire IV, Moniteur, Reimp., xxvi. 197, 212.
(60) La Gazette nationale ou le Moniteur universel (hereafter Moniteur), an IV, pp. 134-35.
(61) Report of the Commission des Onze, 2 brumaire IV, Moniteur, Reimp., xxvi. p. 301.
(62) Camus in Council of Five Hundred on 15 floreal, Moniteur, an IV, p. 919.
(63) Chenier on 4 brumaire, Moniteur, an IV, p. 174.
(64) The exception is Sergio Luzatto, "Comment entrer dans le Directoire? Le probleme de l'amnistie," in La Republique directoriale: Actes du colloque de Clermont-Ferrand (22-24 mai 1997), Pierre Bourdin and Bernard Gainot, eds. (Clermont-Ferrand, 1998), pp. 207-29, which appears in modified form in his L'automne de la Revolution, pp. 328-39. However, Luzatto spends little time on the amnesty itself and focuses instead on the Directory's rough handling of amnisties.
(65) Moniteur, Reimp., xxiii. 222-24, 226 (26 nivose and I pluviose III).
(66) Archives departementales de la Haute-Saone, 368 L 11, 16 brumaire IV.
(67) See Baudin's speech introducing the amnesty on 2 brumaire, Moniteur, an IV, pp. 151-54.
(68) For example, Pierre Vaillandet, "Le proces des juges de la Commission revolutionnaire d'Orange," Annales historiques de la Revolution francaise (1929), pp. 137-63.
(69) Both Mathiez, Reaction thermidorienne, p. 180, and Lefebvre, Thermidoriens, pp, 129-32, insist that such trials were part of reactionary persecution, even while noting that trials of "terrorists" by regular criminal courts during Year III generally led to acquittals. See also, Albert Babeau, Histoire de Troyespendant la Revolution, 2 vols. (Paris, 1873), ii, 362 ff., and Roger Maltby, "Crime and the Local Community in France: the Department of the Drome, 1770-1820," D.Phil. Thesis (Oxford, 1980), pp. 277-79.
(70) Georges Fournier, "Realite et limites de la reaction thermidorienne dans l'Herault, L'Aude, et la Haute-Garonne," in Tournant de l'an III, p. 490; Richard Cobb, Les armees revolutionnaires (Paris, 1962), p. 704; L'Anti-terroriste, 17 floreal and 18 thermidor III.
(71) Martyn Lyons, Revolution in Toulouse. An Essay on Provincial Terrorism (Berne, 1978), pp. 80-81, 97; Archives departementales de la Haute-Garonne, 7L 201 U 4, 22 vendemiaire IV.
(72) Christine Peyrard, Les Jacobins de l'Ouest (Paris, 1996), pp. 295-300.
(73) To be precise, the decree of 22 vendemiaire IV suspended prosecution before the amnesty nullified it. J. Vercier, La justice criminelle dans le departement de l'Herault pendant la Revolution, 1789-1800 (Montpellier, 1926), pp. 185-87, 201-3; Duval-Jouve, Montpellier pendant la Revolution, 1789-an VIII, 4 vols. (Montpellier, 1879-81), iv. passim; Archives Nationales, BB (18) 364, D 18; Archives departementales de l'Herault, L 6725, 2 pluviose IV.
(74) Mortimer-Ternaux, Terreur, iii. 622-35.
(75) For a biographical approach to this issue, see Richard Cobb, Reactions to the French Revolution (Oxford, 1972), pp. 63-127.
(76) Yves Castan, Honnetete et relations sociales en Languedoc, 1715-1780 (Paris, 1974), pp. 69-77.
(77) Archives departementales de la Haute-Garonne, 7L 201 U 2, 26 brumaire and 17 fructidor IV. For similar examples, see M. E. Sarot, Des tribunaux repressifs ordinaires de la Manche en matiere politique pendant la premiere revolution: etude historique, 4 vols. (Coutances and Paris, 1882), iv, 299-302.
(78) In Council of Five Hundred on 11 fructidor, Moniteur, an IV, p. 1390.
(79) In Council of Five Hundred on 10 fructidor, Moniteur, an IV, p. 1363.
(80) In Council of Five Hundred on 11 fructidor, Moniteur, an IV, p. 1390.
(81) In Council of Five Hundred on 16 floreal, Moniteur, an IV, p. 931.
(82) In Council of Five Hundred on 5 fructidor, Moniteur, an IV, p. 1360.
(83) See the Directory's message to the Council of Five Hundred on 14 germinal IV and the attached pieces in Archives Nationales, C 495, d. 311.
(84) The amnesty allowed victims to sue perpetrators for the recovery of money or property illegally seized or embezzled during the Revolution, but this provision limited claires to simple restitution and made no mention of either compensatory or punitive damages. The law did not encourage victims to sue perpetrators, and so apparently, they almost never did, despite encouragement from the minister of justice. Aristide Douarche, Les tribunaux civils de Paris pendant la Revolution (1791-1800), 2 vols. (Paris, 1905-1907), provides a synopsis of every civil suit handled in Paris during these years and none of them involved compensation for victims of the Terror.
(85) The Directory's messages to the Council of Five Hundred on 14 and 19 germinal 1V in A. Debidour (ed.), Recueil des actes du Directoire executif, 4 vols., (Paris, 1910-17), ii. 85, 113. These messages were bolstered by a report from the minister of justice summarizing the many inconsistencies in applying the amnesty. For a brief introduction to the debate over the amnesty in the early Directory, see Lefebvre, France sous le Directoire, pp. 224-29 and for its significance to the regime, see Brown, Ending the French Revolution, pp. 23-37.
(86) Camus in Council of Five Hundred on 15 floreal, Moniteur, an IV, p. 919.
(87) The amnesty for soldiers adopted on 4 fructidor V refined the amnesties of year III.
(88) Jourdan in Council of Five Hundred on 10 fructidor, Moniteur, an IV, p. 1385.
(89) Council of Five Hundred on 22 fructidor, Moniteur, an IV, pp. 1427-28, 1431-35.
(90) Riou in Council of Five Hundred on 3 vendemiaire, Moniteur, an V, pp. 25-28.
(91) In Council of Five Hundred on 30 vendemiaire, Moniteur, an V, pp. 142-44, 146-47.
(92) Troncon-Ducoudray and Baudin in Council of Elders on 3 frimaire, Moniteur, an V, pp. 263-75, passim.
(93) Luzatto, "Comment entrer dans le Directoire?," pp. 218-29; Richard Cobb, "Note sur la repression contre le personnel sans-culotte de 1795 a 1801," in his Terreur et subsistances (1793-1795) (Paris, 1964), pp. 179-219: Isser Woloch, Jacobin Legacv: The Democratic Movement Under the Directory (Princeton, 1970), pp. 48-49.
Howard G. Brown is professor of history at Binghamton University, State University of New York. He is the author of Ending the French Revolution: Violence, Justice and Repression from the Terror to Napoleon (2006), as well as other books and articles on the French Revolution.
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|Author:||Brown, Howard G.|
|Publication:||Canadian Journal of History|
|Date:||Dec 22, 2010|
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