You Need The Right Lawyer When You Are “Suspended Beneath The Blade Of The Law”

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Having a keen interest in French History, especially the French Revolution, and being a member of the legal profession, I share here a few thoughts on topics that are of genuine interest to me.

Of course, it’s but a cursory glance at some of the well known historical figures, men, who were at the disposal of the law at the time, law so rigorous that some had no chance of escaping its long blade. Indeed, it’s a peek into a little bit of history and historical fiction including  the French Revolution as seen through the eyes of certain lawyers.  I mention the trial of King Louis XVI, his lawyers, his defence, sentence and execution and I talk about the ethics of advocacy.

A few years ago I read A Place of Greater Safety, Hilary Mantel’s historical fiction novel written sometime in the 1970s when she was just 22 & published in 1992.  Definitely one of my favourite reads, ever.

Before reading the novel I had just finished the first two books in her Tudor era trilogy Wolf Hall and Bring Up the Bodies. While I thoroughly enjoyed them both, A Place of  Greater Safety is the superior of the three works, far more compelling in its nearly 900 pages.  Gravitas plus!  Of course Ms. Mantel has since released the third book in her trilogy, The Mirror and the Light’ which I have yet to read.

A Place of Greater Safety is about the French Revolution narrated by three protagonists, the well known lawyers Georges Danton, Maximilien de Robespierre & Camille DesmoulinsOf course Desmoulins eventually abandoned the law to pursue a career in writing  & political journalism.

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Danton

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Desmoulins

Reading & ‘studying’ history is a pleasure for me no matter the content or context & historical fiction is just one part of my historical journey.  If I wasn’t a lawyer I’d be a historian, or a journalist.

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

The trick is to read ‘A Place of Greater Safety’ like one reads any historical fiction, keeping in mind the tension between history & fiction.

One learns that much of what Mantel fictionalised in the book we know from the existing historiography of the French Revolution.  Nobody can say it’s hard finding out about the 1789 Revolution of France.  And Mantel portrays those dark horrors of the bloody Revolution, the tragedy of that Terror as it devoured so many including those at its centre, many well known in the history . . . many who ended up being guillotined.

Desmoulins & Danton were guillotined on the same day in 1794.

Robespierre’s great power in the Reign of Terror ultimately sent him to the guillotine.

 

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Robespierre

 

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


But there was something special about A Place of Greater Safety.   The more I read Mantel’s story, the more powerful and convincing it became.  I had trouble putting it down. Literally. What was it?  Why did it absorb me so?  First is that it is easy to appreciate how meticulous Mantel is in her research and in her focus on the 5 years of the French Revolution.

But what really attracted me, so diligently, to the book is her ability to make French Revolutionary history accessible & understandable. Yes, understandable to me, to you, to everybody.  I mean, how many writers can do that?  What she does is write about this part of history for all of us.  Her telling flows with ease, her narrative is absorbingly easy to read & follow.  Never dull, never boring,  never esoteric.  You don’t have to be a history scholar, an academic, or a history nerd to learn about & enjoy a part of French Revolution history in this novel. I think that is Mantel’s trick.

Arguably, I guess, readable fiction like this could amount to secondary source material, certainly a complimentary part of the historical record of the French Revolution.

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

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

 

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

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

Keep in mind that Schama’s book was written to coincide with the 200th anniversary of the French Revolution in 1989.  It was written on a publisher’s commission for public consumption more than for academia which means it’s also an accessible read on the Revolutionary history of France.

I’m a lawyer not a historian & Schama’s book amply details the French Revolution for me.  I’m not interested in heavy duty primary source material or dry & laborious academic & historical analyses of the Revolution.  Schama chronicles the pivotal years of the Revolution in a clear & erudite narrative style that’s accessible & enjoyable.  It is one of my most prized sources for French Revolution history.

So, there you have my view. I loved & love both: Simon Schama’s history as well as Mantel’s book.  Indeed I recommend Schama’s book to anybody wanting a readable, understandable & thought-provoking insight into the Revolution era.

 

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But it’s not just these two  books.

Naturally, I’m interested in legal aspects of the Revolution. I’m especially interested in Louis XVI’s trial, his defence, sentence & execution and, of course, his three lawyers.  Who were these guys, these three defence lawyers, ces trois avocats francais?  We rarely, if ever, hear about them.

Only after hearing the indictment (act enonciatif) was Louis allowed lawyers to represent him before the Convention.  Facing the death penalty, he needed all the help he could get, a strong team of lawyers. Like any death penalty case, then or now, the lawyer’s main goal is to save the defendant’s life.  So who were the men who stepped forward to represent Louis as he was “suspended beneath the blade of the law“? Who were the three lawyers who stepped forward to manifest the responsibility of a lawyer to his client & by doing so, in this case in particular, put their own lives at risk?

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Defence of Louis XVI

(1) MALESHERBES

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Guilliaume Malesherbesan elderly & experienced attorney, a retired jurist & former minister, asked permission from the President of the Convention to serve as defence counsel for the King.

Many people judged it to be dangerous at the time to offer to act for Louis, to help save his life. Malesherbes offered to join the team of lawyers.

 

 

 

In writing to the President, he said:

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

As a result of advocating for Louis XVI, Malesherbes was arrested in December 1793 & condemned to death as a counterrevolutionary by the Revolutionary Tribunal & guillotined with his daughter & grandchildren.

For journal entries as to what passed between Louis XVI 7 Malesherbes see Malesherbes on Louis XVI before his Trial 

(2) TRONCHETtronchet_francois_denis_dapres_roland1

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

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

(3) DESEZE

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

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

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

 

So, what about ces trois avocats francais, Louis’ three lawyers and the ethics of advocacy? The historical record shows the three advocates vigorously prepared the case for Louis. They defended the King with all the zeal they could muster despite the dangers to their careers and lives.  This was professionalism; it was ethical advocacy.

What am I talking about when, as criminal defence lawyers, we act ethically?  While I’m speaking as one who practices law in a common law adversarial system, it is clear that Louis’ lawyers did exactly as would have been done in Australia, the UK or USA.

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

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

As advocates we are professionally & ethically bound to aid the client with ardour in presenting his side of the case.

The state sustains the burden of proof regarding guilt

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

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

As I said above, as advocates we are professionally & ethically bound to represent the client with zeal and ardour in presenting his side of the case guided by the rules of advocacy. The need for skilled & honourable advocates is an accepted & fundamental part of our criminal justice system in Australia as it is in the USA.

Such were the three men who defended Louis XVI – Malesherbes, Tronchet & de Seze – his defence lawyers, skilled & honourable advocates, no doubt acting within the French rules of ethics & conduct for l’avocats in existence during the Revolution, who came forward & defended him knowing they put themselves at risk.

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

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

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