The Girondists wished to save Louis XVI., but they feared the imputation of royalism, which was already cast upon them by the Mountain. During the whole transaction, their conduct was rather equivocal; they dared not pronounce themselves in favour of or against the accused; and their moderation ruined them without serving him. At that moment his cause, not only that of his throne, but of his life, was their own. They were about to determine, by an act of justice or by a coup d'état, whether they should return to the legal regime, or prolong the revolutionary regime. The triumph of the Girondists or of the Mountain was involved in one or the other of these solutions. The latter became exceedingly active. They pretended that, while following forms, men were forgetful of republican energy, and that the defence of Louis XVI. was a lecture on monarchy addressed to the nation. The Jacobins powerfully seconded them, and deputations came to the bar demanding the death of the king.
Yet the Girondists, who had not dared to maintain the question of inviolability, proposed a skilful way of saving Louis XVI. from death, by appealing from the sentence of the convention to the people. The extreme Right still protested against the erection of the assembly into a tribunal; but the competence of the assembly having been previously decided, all their efforts were turned in another direction. Salles proposed that the king should be pronounced guilty, but that the application of the punishment should be left to the primary assembly. Buzot, fearing that the convention would incur the reproach of weakness, thought that it ought to pronounce the sentence, and submit the judgment it pronounced to the decision of the people. This advice was vigorously opposed by the Mountain, and even by a great number of the more moderate members of the convention, who saw, in the convocation of the primary assemblies, the germ of civil war.
The assembly had unanimously decided that Louis was guilty, when the appeal to the people was put to the question. Two hundred and eighty-four voices voted for, four hundred and twenty-four against it; ten declined voting. Then came the terrible question as to the nature of the punishment. Paris was in a state of the greatest excitement: deputies were threatened at the very door of the assembly; fresh excesses on the part of the populace were dreaded; the Jacobin clubs resounded with extravagant invectives against Louis XVI., and the Right. The Mountain, till then the weakest party in the convention, sought to obtain the majority by terror, determined, if it did not succeed, none the less to sacrifice Louis XVI. Finally, after four hours of nominal appeal, the president, Vergniaud, said: "Citizens, I am about to proclaim the result of the scrutiny. When justice has spoken, humanity should have its turn." There were seven hundred and twenty-one voters. The actual majority was three hundred and sixty-one. The death of the king was decided by a majority of twenty-six votes. Opinions were very various: Girondists voted for his death, with a reservation, it is true; most of the members of the Right voted for imprisonment or exile; a few of the Mountain voted with the Girondists. As soon as the result was known, the president said, in a tone of grief: "In the name of the convention, I declare the punishment, to which it condemns Louis Capet, to be death." Those who had undertaken the defence appeared at the bar; they were deeply affected. They endeavoured to bring back the assembly to sentiments of compassion, in consideration of the small majority in favour of the sentence. But this subject had already been discussed and decided. "Laws are only made by a simple majority," said one of the Mountain. "Yes," replied a voice, "but laws may be revoked; you cannot restore the life of a man." Malesherbes wished to speak, but could not. Sobs prevented his utterance; he could only articulate a few indistinct words of entreaty. His grief moved the assembly. The request for a reprieve was received by the Girondists as a last resource; but this also failed them, and the fatal sentence was pronounced.