Robespierre's Tail: The Possibilities of Justice after the Terror
Brown, Howard G., Canadian Journal of History
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). …