The Trial: A History from Socrates to O. J. Simpson
The Trial: A History from Socrates to O. J. Simpson
Sadakat Kadri
In an extraordinary history of the criminal trial, Sadakat Kadri shows with wit, legal insight and a travel writer’s eye for detail, how the irrationality of the past lives on in the legal systems of the present. A bold and brilliant debut from a prize-winning writer.‘The Trial’ spans a vast distance in time, opening in the dread silence of the Egyptian Hall of the Dead and ending with the melodramas and hubbub of the 21st-century trial circus. Reconciliation and vengeance, secrecy and spectacle, superstition and reason all intertwine continually. The book crosses from the marbled courtrooms of Athens through the ordeal pits of Anglo-Saxon England, past the torture chambers of the Inquisition to the judicial theatres of 17th-century Salem, and from 1930s Moscow and post-war Nuremberg to the virtual courtrooms of modern Hollywood.Kadri shows throughout how the trial has always been concerned with doing more than guaranteeing fairness and holding human beings to account for their deliberate crimes. He recounts how insentient and irrational defendants from caterpillars to corpses were once summonsed to court, before being exiled for their failure to attend or sentenced to die again – and argues that the same urge to punish lives on in today's trials of children and the mentally ill. But although Justice’s sword has always been double-edged – as ready to destroy a community’s enemies as to defend its dreams of due process – the judicial contest also operates to enshrine some of the western world’s most cherished values. The show trials of Stalin's Soviet Union were shams, but Guantanamo Bay and Abu Ghraib are a reminder that a lack of a trial is equally unjust, and at a time when our constitutional landscape seems to be melting away, an appreciation of the criminal courtroom’s history is more necessary than ever. As the Labour government launches an almost annual attempt to truncate trial by jury, and as authorities on both sides of the Atlantic are indefinitely detaining people in the name of an endless war on terror, ‘The Trial’ could hardly be more timely.Note that it has not been possible to include the same picture content that appeared in the original print version.
The Trial
A History from Socrates to O.J. Simpson
Sadakat Kadri
For my mum and dad, with love.
Contents
Cover Page (#uef8accc1-4701-58e1-a982-5e2e0c5d5d62)
Title Page (#ud38a62f3-0f50-5368-9bf8-fe3ccbf42f6d)
Dedication (#u2da4f0a1-ddb4-585e-a4a1-f3089af7a7f0)
Introduction (#ude911736-da39-5c20-9772-a3db93cbb97d)
1 From Eden to Ordeals (#ufcd1e829-c26a-56a6-bf5f-55ad03e508d9)
2 The Inquisition (#ue57f27dd-688f-5ba5-8b94-8a82ff712c97)
3 The Jury Trial (1) (#u69f9e794-5d11-50e7-96bd-c1b8892b8b4d)
4 The Witch Trial (#u3b2f0636-b6da-524e-b73e-71d8596e4951)
5 The Trials of Animals, Corpses, and Things (#litres_trial_promo)
6 The Moscow Show Trials (#litres_trial_promo)
7 The War Crimes Trial (#litres_trial_promo)
8 The Jury Trial (2): A Theatre of Justice (#litres_trial_promo)
Conclusion (#litres_trial_promo)
Acknowledgements (#litres_trial_promo)
Further Reading (#litres_trial_promo)
Notes (#litres_trial_promo)
Index (#litres_trial_promo)
P.S. (#litres_trial_promo)
About the author (#litres_trial_promo)
The Dream of Justice (#litres_trial_promo)
LIFE at a Glance (#litres_trial_promo)
A Writing Life (#litres_trial_promo)
About the book (#litres_trial_promo)
The Difference Between God and Lawyers (#litres_trial_promo)
Read on (#litres_trial_promo)
Sadakat Kadri’s Suggested Further Reading (#litres_trial_promo)
Films to Watch (#litres_trial_promo)
The Web Detective (#litres_trial_promo)
About the Author (#litres_trial_promo)
Praise (#litres_trial_promo)
By the same author (#litres_trial_promo)
Copyright (#litres_trial_promo)
About the Publisher (#litres_trial_promo)
Introduction (#ulink_ff6d6bd6-9f75-57fb-b749-f59e86429cb7)
In August 1792, as the French Revolution hurtled towards its years of Terror, Paris was seized by panic. Armies from Prussia and Austria were marching on the capital to restore King Louis XVI to the throne, and radicals had responded by slaughtering several hundred of his Swiss guards and placing the royal household under arrest. To the sound of boots and drums and bells, the capital mobilized, aware that the commander of the invading forces had sworn vengeance on every Parisian if the king’s person was violated. When the Germans reached Verdun, just a hundred miles east, the possibility of a bloodbath became imminent. As fear mounted, the pamphleteers and propagandists of the Revolution identified a threat even closer to home than the Prussians: the thousand or so royalists and clerics who were being held in the municipal jails. ‘You have traitors in your bosom,’ warned Danton. ‘Without them the fight would have been soon over.’ ‘The prisons are full of conspirators,’ thundered the Orateur du peuple. ‘The first battle we shall fight will be inside the walls of Paris.’ The prescription of Marat was most precise of all. ‘The people’s duty,’ he wrote, was to ‘run [the traitors] through with a sword’.
It soon became clear that many Parisians were inclined to agree. As a train of cabs carrying some twenty captive priests inched its way through the seething capital on 2 September, one of the passengers, deluded or desperate, lashed out with a stick. It was a bad move. The man struck by his assault leapt onto the carriage step, thrust a sabre three times through its open door, and raised the glistening blade to the roaring crowd. The passengers in the cab were cut to pieces and at the convoy’s destination, a prison called the Abbaye, a mob broke down the doors and turned pikes and bayonets onto those who had survived. The murders set off a holocaust. Some twelve hundred prisoners were killed over the next four days and nights, despatched inside prisons that echoed with their screams and stacked high on streets and bridges that ran with their blood. It was the deadliest single atrocity in a Revolution that never lacked for violence – but it was distinguished by more than its scale. Almost as soon as it had begun, the Parisian authorities sent an urgent instruction to those carrying it out. The people’s enemies were not to be killed so quickly, it warned. They had to be tried first.
One of those who faced the revolutionary music was army officer François Jourgniac de Saint-Méard, who was taken from his cell in the Abbaye during the early hours of 4 September and led into a darkened chamber. About a dozen men were present. Some stood around in bloody shirts and aprons, machetes hanging from their waists; others dozed on the sidelines. Behind a bench at the far end, his gaunt features illuminated by the smoky flames of two torches, was the tall, dark, and tubercular figure of Stanislas Maillard, a 29-year-old veteran of the storming of the Bastille who had assumed the status of tribunal president. Saint-Méard was detained behind crossed sabres as a soused sansculotte handed up a reference for the 70-year-old man whose trial was reaching its conclusion. Maillard waved it aside. ‘They are useless, these appeals for traitors,’ he grumbled. ‘My hands are washed of it; take [him] away.’ As the old man was dragged to the back of the room, he struggled furiously with his captors. ‘It is frightful!’ he protested. ‘Your judgment is murder!’ Maillard scribbled into his files as the doors were opened onto the street. Men and women outside, skulking like dogs around an abattoir, suddenly galvanized into a pack. It swallowed its prey with a great roar. Maillard continued to leaf through his papers. ‘Another!’ he called.
Saint-Méard’s guards tugged him to the centre of the room. Shadows leapt as defendant and judges peered at each other across a table littered with pipes, inkstands, and half-drained bottles of liquor. Why had he been arrested, demanded Maillard. Saint-Méard replied that he was thought, wrongly, to have edited a royalist newspaper. A single lie, snapped another voice, would mean instant death. If he was innocent, why had he been charged?
He had begun to reply when a priest was suddenly hauled into the room. A stupefied Saint-Méard watched as the cleric was bombarded with a flurry of questions, sentenced to death, and then pulled away, pleading for mercy. The judges invited him to continue. How could they be sure that documents he had handed up were not forgeries? Saint-Méard suggested, very hopefully, that they should adjourn his case while they checked – only to be interrupted again. A jailer, pale with fear, burst into the room to report that a prisoner was clambering up the chimney. Maillard warned grimly that if he made good his getaway, the turnkey would pay with his life. Everyone’s attention switched to the new drama, as pistols were fired up the flue and a heap of straw was lit in the fireplace. Only when the would-be fugitive dropped into the hearth – where, stunned and ablaze, he was beaten to death – did the trial resume. You have told us many times what you were not, noted one of the judges, but what is it that you are? Saint-Méard desperately replied that he was a patriot and explained that, far from plotting against the Revolution, he had considered it too timid. The claim, addressed to men who were diligently murdering in said Revolution’s name, was an audacious one. None of his judges looked convinced. Most appeared unmoved. Some seemed asleep. But their inscrutability masked one final surprise.
‘I am for granting him his liberty,’ declared Maillard. His fellow judges expressed their agreement, with joy rather than reluctance, and an astonished Saint-Méard was embraced by his jailers. And as he was escorted into the street between the torches of an honour guard, the mob that had just torn a man limb from limb parted to let him through, with cries of ‘Vive la nation!’
Saint-Méard’s experience was far from unique. Around one in seven of those at the Abbaye were spared, and the acquittals were repeatedly greeted with jubilation or tears from judges, guards, and citizenry alike. Historians have typically characterized the trials as shams but, understandable as that is, it raises an obvious question – who was being fooled? Saint-Méard struggled to believe that the proceedings were something more exalted and succeeded to the extent that his life was saved. His judges were partners as much as adversaries, from the moment that they asked him to explain his arrest to the point when they freed him. Far from deliberately performing the preamble to a murder, everyone was longing to enact a dream of liberty, equality, and fraternity. And the delusions created their own reality.
The law has become so closely associated with reasoned deliberation that it is sometimes hard to think of criminal trials as anything other than inquiries – but they have always performed a function that goes far beyond that of establishing who did what to whom. The first judges were priests, whose punishments were as sacrificial as they were penal, and the law has ever since asserted the power most proper to gods: the ability to rebalance a cosmos knocked out of kilter. Since the days of ancient Athens, there is no wrong that it has not somewhere claimed to right – even when no human defendant has been available to carry blame. In the courts of early modern Europe, creatures from beetles to bulls were regularly prosecuted, defended, and condemned at public expense. English juries for several centuries returned homicide verdicts against mischievous objects from haystacks to locomotives. Lawyers discovered new categories of criminal, from traitors to werewolves, whenever popular passion or private fear required. The long arm of the legal process even reached into the grave: for well over half a millennium, the bodies of dead criminals were brought into court to be accused by witnesses, defended by advocates and, if convicted, punished by the public executioner.
The cowls have metamorphosed into gowns and the incantations have turned to jargon, but ancient impulses still quiver around every courtroom. Rational concerns and logical argument typify any given case, but the terror of infanticide and Devil worship that once sent witches to their deaths was resurrected, in the form of satanic sexual abuse allegations, during the 1980s. Animals and corpses are no longer put on trial, but the urge to punish defendants regardless of their mental state lives on in prosecutions of children and the mentally ill. Perhaps the best example of the continuing faith in legal omnipotence comes from a case that never quite happened. In the spring of 1949, the first president of the Israeli Supreme Court, Moshe Smoira, received dozens of petitions from Christian clerics around the world. His country was less than a year old and had just fought off five Arab armies committed to its destruction, but the writers had few doubts about the urgency of their appeal – and none at all concerning the legitimacy of the Jewish state. Would he please, they asked, reopen the proceedings of the Sanhedrin and overturn the conviction of Jesus Christ?
This book quickened in 2000 in London, where I had been working for seven years as a criminal barrister. Almost a decade before, I had lived in post-revolutionary Prague and had then been struck by the extent to which many Czechoslovakians seemed to be blaming others to avoid tough questions about their own contributions to the communist era. I had vaguely wondered then if such thoughts might stretch into a book on scapegoats and soon decided that they would not. The weird dynamic of naming and shaming continued to interest me, however, as I represented villains both innocent and guilty, and by 2000 I was ready to try again. This time, I had a far clearer structure in mind. By writing a history of the criminal trial, stories rather than theories would drive the book forward.
Events elsewhere would further delineate its structure. Before Prague I had studied at Harvard and qualified for the New York Bar, and it seemed a sensible idea – or at least a pleasant one – to relocate to the United States. I reached New York in the summer of 2001. By mid August I was ensconced in a small studio with a splendid view over Manhattan’s financial district. Thus it was that on 11 September I watched from my windows as the towers of the World Trade Center burned and collapsed. Over subsequent weeks I wandered a city in mourning, personally unable to write and convinced that little was now of less significance to anything than an analysis of the criminal trial. I would spend another two and a half years in the United States and my mood would pass. But others, many of them in high places, were expressing similarly gloomy conclusions about the redundancy of the criminal process – and in their case, the trauma would have lasting effects. Over the next few months, a landscape familiar to me since law school seemed sometimes to be melting away. Several legal commentators were suggesting that the constitutional right to silence should be abolished. A Harvard law professor whom I had once respected proposed that it might be time to introduce a right to torture in its place. The administration of President George W. Bush, meanwhile, embarked on a policy of deeming entire categories of people, American and foreign, to be subject to indefinite detention without a right of access to courts, let alone a right to public trial.
Emergency powers have been invoked to combat terrible crimes since the days of heresy and witchcraft, and the fact that twenty-first-century commentators were readopting stances that inquisitors had abandoned in the eighteenth soon reassured me that a little historical perspective would not go amiss. But the aftermath of September 11 also sharpened the focus of my book. I had always anticipated that a central theme would be the conflict between reason and emotion – a tension that galvanizes any courtroom – but in the new climate a more fundamental aspect of that link came to the fore: why trials take place at all. For at the same time that hundreds of people were being accused without prosecution, official talk of justice – and even Infinite Justice – was reaching a crescendo. Governments are not the only component of a criminal justice system, but the reasons that they avoid courts increasingly came to seem at least as significant as the reasons that they resort to them. The relationship between secrecy, publicity, and transparency consequently became central to my book.
From the very outset, I chose not to conduct interviews. Contemporary topics such as capital punishment and the war on terror would have called for a range of views from participants ranging from defendants to judges. Anthropologists, sociologists and political scientists, not to mention historians and lawyers, might all have had other worthwhile things to say. Finding experts to cover every subject evenly would have been beyond my time and inclination. The book quotes from countless chronicles, pamphlets, transcripts and newspaper reports but mine is the only voice to keep the babble in line.
The task that lay ahead when I began was a daunting one. The tale I intended to trace began more or less at the dawn of time, hopped back and forth between centuries, and demanded that I address subjects as dark as child abuse and terrorism with as light a touch as possible. It was a tall order, and attempting to fulfil it gave the book a very particular structure. Rather than use a straightforwardly chronological approach, which lacked flexibility, or compile a compendium, which would have bored me let alone anyone else, I divided the work into eight thematic chapters that proceed in roughly historical order. They begin with the religious rituals of the classical and barbarian worlds and end in the trial circuses of today, and several address specific aspects of twenty-first-century justice. Each dovetails into the next and with luck, they combine to form more than the sum of their parts.
Several ideas run through the chapters, but one simple theme could be said to link them all: the tension inherent in the criminal process between the desire to punish and the fear of making a mistake. Courts have collectively spilled at least as much blood as the people they condemned, but they have always aspired to more than violence. The oldest laws yet to be discovered, enacted by Babylon’s King Hammurabi in the eighteenth century BC, worried about injustice to the extent that false witnesses were to be punished as harshly as those who were properly convicted. And although the sword of righteousness has been in play since King Solomon, confronted with two women claiming the same child, threatened to slice it in two and wisely surmised that the impostor was the one who agreed. Justice has wielded another tool for even longer. Four and a half thousand years ago, when Hammurabi’s dynasty was unknown and Athens’ Golden Age shimmered as far in the future as it now lies buried in the past, the priests of Egypt were already venerating the goddess Ma’at, whose scales measured out justice for the dead. In the Hall of Two Truths, watched by a horrid hybrid of cat, crocodile and hippopotamus called Am-Mit, she would place the hearts of those who had just died on one pan, and drop the feather of truth onto the other. If the feather sank, the departed soul would gain entrance to the Kingdom of the Dead. But if it rose, outweighed by the heart’s burden of deceit, Am-Mit would be fed – and its owner would be abandoned to oblivion.
The balance remains the most potent image of justice in the Western world. But as it migrated into modern Europe from Egypt and Babylon, via Jews, Greeks, Romans and barbarians, the meaning of its symbolism would be decisively transformed. No story better exemplifies that than one from the career of Sir Edward Marshall Hall, a famous British barrister of the early twentieth century.
Marshall Hall was defending one Edward Lawrence, charged in 1909 with having murdered his lover with a gun. Lawrence entered the dock with one foot already on the scaffold. He had admitted to police that he had shot her, and declared that he was ‘glad’ to have done so, because she was ‘wicked’ and ‘best dead’. But by the end of the defence case, words that had seemed so damning no longer sounded worse than callous. Lawrence had claimed from the witness box that the victim died accidentally as he was pulling a gun from her. He had re-enacted the struggle three times, so convincingly that even the judge was privately persuaded of his innocence. More than twenty witnesses had told the jury about the victim’s ferocious temper and frequent threats against Lawrence. By the time that Marshall Hall came to make his final speech, a case that had seemed black and white was turning very murky – and it was to uncertainty itself that he now appealed. Standing with arms outstretched, he asked the jurors to imagine ‘a great statue of justice holding those two scales with equally honest hands’ and began methodically to go through the evidence for and against his client. First one side, and then the other, he told them – swaying all the while – might seem lower. It might be almost impossible to say which side was closer to the ground. And as the jurors watched, entranced, came the punchline.
Then in the one scale, in the prisoner’s scale, unseen by human eye, is placed that overbalancing weight, the weight of the presumption of innocence…it is your duty to remember the invisible weight of that invisible substance.
With those words, he let one arm drop with a thud to the bench. The jury acquitted after twenty minutes.
The journey from the Hall of Two Truths to the Old Bailey is a vast one. It crosses from the marbled courtrooms of Athens to the ordeal pits of Anglo-Saxon England, passing from the torture chambers of the Inquisition to the judicial theatres of Salem in the 1690s and Moscow in the 1930s. Justice and vengeance, secrecy and spectacle, and superstition and reason intertwine continually along the way, but this book’s trajectory is a straightforward one. At a time when governments appear increasingly unsure whether the criminal trial is a dispensable relic or a touchstone of liberty, it explores why the West came to regard the invisible doubt as a more reliable guide to justice than the feather of truth.
This book is concerned with only the Western legal tradition, and although it covers continental law in some detail in the first few chapters, its modern focus is on the Anglo-American jury trial and the war crimes trial. Any attempt to broaden its scope would have required either oversimplification or a work twice as long, and would probably have produced both. Whether the quality of Western justice is better or worse than that of the justice of other cultures is a question that I have happily ducked. The book’s subject is the brutality or nobility of the West’s institutions, and the extent to which those institutions have honoured or betrayed the ideals for which they claim to stand.
1 From Eden to Ordeals (#ulink_11114a15-870b-5f9c-b0d3-31c28af2bf66)
It is only our conception of time that makes us call the Last Judgment by that name; in fact it is a permanent court-martial.
FRANZ KAFKA, Aphorisms
One of the few things that humanity has agreed upon for most of history is that its laws descend directly from the gods. The oldest complete legal code yet discovered, inscribed onto a black cone by the Babylonians almost four thousand years ago, shows Shamash, god of the sun, enthroned and handing down his edicts to a reverential King Hammurabi. Jehovah reportedly did much the same thing a few centuries later, carving ten commandments onto two tablets with His own finger as Moses stood by on fiery Mount Sinai. Coincidentally or otherwise, it was said of Crete’s King Minos that he climbed Mount Olympus every nine years to receive legal advice from Zeus. Ancient cultures were equally certain that the power to adjudicate breaches of the law rested ultimately in the hands of the gods. The methods of enforcement were often as terrible as they were mysterious – ranging from bolts of lightning to visitations of boils – but the justice of the punishments was as unquestionable as the law that they honoured.
And yet, for all the insistence that heavenly laws were cast in stone and divine judgments unerring, one question always caused turmoil – namely to whom, down on earth, had the right to judge been delegated? The priests who veiled their various scrolls and statutes invariably argued that only they could interpret their secrets, backing up the claim with further revelations as and when required. Monarchs were no less assertive, and constantly sought to interfere with the religious mysteries of justice. Some even argued that the power lay elsewhere. Among the Hebrews, for example, an old tradition prescribed that homicides should be tried by common people, and although Judah’s priests established something close to a theocracy after 722 BC, their oldest myth of all characterized the ability to tell good from evil as every human being’s birthright. The story of the Fall was not, admittedly, a ringing endorsement of the power to judge – Adam and Eve had, after all, paid for their apple with sorrow, sweat, and death – but it was certainly a start.
The Athenians would produce a considerably more robust illustration of humanity’s inherent sense of justice: Aeschylus’ Oresteia, the oldest known courtroom drama in history. The trilogy, first performed in 458 BC, retells the ancient myth of Orestes, scion of the royal house of Atreus – a bloodline as polluted as any that has managed to perpetuate itself on this earth. The corruption had set in when its founding father Tantalus chose, for imponderably mythic reasons, to slaughter his son, boil the body, and serve it up as soup to the gods. Aggrieved Olympians condemned him to an eternity of tantalization, food and drink forever just out of reach, and resolved to visit folly, blindness and pride on his offspring for evermore. Family fortunes began a rapid decline, and by the time that Tantalus’ great-great-grandson Orestes reached adulthood, its history of rape, incest, cannibalism, and murder had generated a degree of domestic dysfunction that was pathological even by the standards of Greek mythology.
The play opens with news that Agamemnon, commander of the Greek armies and father of Orestes, has just triumphed at the Trojan Wars. But all is not well. Victory was purchased through the sacrifice of his own daughter, Iphigeneia, and he has abducted Cassandra, the beautiful child of Troy’s King Priam, to have as his concubine. His wife, Clytemnestra, has meanwhile taken a lover of her own and sworn to avenge Iphigeneia. When Agamemnon returns to the marital home, as oblivious to the obvious as every tragic protagonist should be, the tension mounts. Cassandra waits at the gates while he enters its portals – and the princess, cursed to know the future but powerless to change it, sees horror ahead. Hopping and screeching on the palace eaves are the Furies, supernatural guardians of cosmic propriety, and throbbing deep within are visions of anguish: torn wombs, a soil that streams blood, a bath swirling red…and Agamemnon, dead. ‘I know that odour,’ intones Cassandra, as she steps up to the threshold. ‘I smell the open grave.’ Screams engulf her, and the first act closes with Clytemnestra exulting over the bodies of her husband and his prize, a bloody knife in her right hand. Her work, she proclaims, is a masterpiece of justice.
It all leaves Orestes in a pickle. On the one hand, he loves his mother. On the other, he is honour-bound to slaughter her. Urged on by a crazed Chorus, he makes his way to the family palace, where he first cuts down her lover. He then forces Clytemnestra to gaze on the body. Pleading for her life, so desperate that she bares the breasts that once suckled him, she begs her son to accept that destiny played as much of a role in Agamemnon’s demise as her dagger. Orestes is torn between the claim of vengeance and the tie of affection, and the drama pivots on a moment of hesitation – before it tips. ‘This too,’ retorts Orestes, ‘destiny is handing you your death.’ He hurls his mother to the floor and makes her embrace her lover’s corpse, before running her through with his sword. The sated Chorus re-gathers to pronounce that the family’s misfortunes have come to an end. Resolution remains an act away, however, and Orestes has of course won no more than his turn to bear the ancestral curse. As it settles, stifling, on his shoulders, he sees the serpent-haired Furies swarming to take revenge and even the Chorus finally begins to waver. ‘Where will it end?’ its members wail, ‘where will it sink to sleep and rest, this murderous hate, this fury?’
Aeschylus’ answer comes in the final part of the trilogy. Shadowed by his mother’s supernatural avengers, Orestes seeks refuge at Apollo’s oracle at Delphi. Apollo, god of justice and healing, reassures him that he did the right thing, but advises him nevertheless to seek the protection of wise Pallas Athena. Orestes duly makes his way to her hilltop citadel on the Areopagus of Athens. The owl-eyed goddess is rather more equivocal. There are arguments both ways, she points out, and even she cannot resolve a conflict between right and right. Her solution is simple. She will summon ten Athenian citizens, bind them by oath, and make them decide.
The substance of the argument that ensues is less significant than its outcome – for although the jury splits evenly, Athena casts her vote for Orestes and is so impressed by her innovation that she prescribes its use in all future homicide cases. Athens, she pronounces, stands on the verge of unprecedented peace and tranquillity. Only the Furies remain unconvinced, hissing with repulsion at the thought of harmony, but even they are quieted by Athena’s assurance that they will have an honoured place in her new court. Their venom has been drawn – and the snake-headed hags, optimistically renamed the Kindly Ones, close the play at the head of a torchlit procession through their blessed city.
Aeschylus intended his work as a celebration of Athens in particular and human potential in general. When it was first performed in 458 BC, some two centuries after the scattered farms and fishing villages of the Attican peninsula had first begun to coalesce, the city was at its zenith. It had just seen off would-be invaders from Persia and transformed itself into a regional superpower, while political reforms were entrusting its male citizens with rights of participation and personal freedom never before seen in the ancient world. In a spirit epitomized by a famous assertion by a thinker called Protagoras that ‘man is the measure of all things’, its poets and philosophers were busily blazing trails that still dazzle more than two millennia later. Aeschylus’ brilliance manifested itself in a series of plays, and it was epitomized in the Oresteia. Whereas Homer had simply paid homage to Orestes as a righteous avenger, and Euripides would later resolve his anguish by having him acquitted before twelve gods, the playwright’s perspective was as radical as it was optimistic. Human honesty, he ventured, might be as sure a guide to the mysteries of justice as the most divine of oracles.
Straightforward though that message appears, it is easy to overrationalize it. Aeschylus’ faith was reflected by reality, in that legal reforms had just transferred the power to judge serious crimes from state officials to ordinary Athenian men, but the ritual that he revered was no fact-finding inquiry. There had been no uncertainty about what Orestes had done: he had deliberately murdered his mother, who had just done the same to his father. And just as the jurors were not convened to find facts, the defendant was not cleared because evidence proved his innocence: he was cleansed of guilt because they decided – by the barest of majorities, tipped by the casting vote of a goddess – that he was not blameworthy. Nor was vengeance removed from the process. Honouring the family by repaying wrongs done to it was still seen as part and parcel of the natural order, and any fifth-century Athenian would have regarded forgiveness as cowardly at best and accursed at worst. Aeschylus had made sure to give the Furies a dignified place in Pallas Athena’s court, and the clinching argument that the goddess used to secure their cooperation was a reminder that they had won the votes of half of the jurors. In his play, as in life, vengeance was being idealized and institutionalized, but it was certainly not being abolished.
Aeschylus’ stance reflected a tension between two ideas about justice that were always at odds with each other in the ancient world. One assumption, that people were at fault only if they had done evil deliberately, was almost as common in fifth-century Athens as it is today. However, there also existed another, more visceral, belief – that some deeds demanded punishment regardless of the perpetrator’s intention, if the rage of the gods was to be forestalled. The view was notoriously prevalent among the ancient Hebrews, who enumerated an entire catalogue of unforgivable abominations, from sodomy to sex with mothers-in-law,
(#litres_trial_promo) and used scapegoats and turtledoves to bear away the burden of countless lesser sins. In Greece itself, some three centuries before Aeschylus was born, the poems of a farmer called Hesiod had proposed that entire cities could suffer because of one man’s misdeeds. About three decades after the playwright died Sophocles would retell the notorious tragedy of King Oedipus, whose unwitting seduction and slaughter of his mother and father respectively brought shame and pestilence onto his realm. And fifth-century Athenians did not just write about such matters; they regularly visited suffering on a minority to cleanse the majority. An annual festival called the Ostracism allowed Athenian men to banish a fellow citizen by vote, and although they often did so for practical reasons, the ritual was widely seen as a way of ridding the body politic of contamination. Athens, like other Greek cities, also maintained a stock of human scapegoats known as the pharmakoi – comprising its poorest, lamest, and ugliest inhabitants – whose function was to be feasted and venerated at public expense, until famine or plague struck. They would then be dragged from their thrones and paraded about to the clatter of pans and the squeal of pipes, before being hounded out of the city gates under a hail of stones.
Trials themselves could operate to shift blame as well as discover it – as the Athenians also appreciated. Every midsummer up to the third century ad, they held a festival known as the bouphonia, at which an axe-wielding official would, after sacrificing an ox, discard his weapon and flee the scene. Someone would then flay the beast, and all present would eat the meat, re-stitch the hide, stuff the carcass with straw, and yoke it to a plough – at which point, a trial was convened to establish who, in the absence of the actual killer, was guilty of its death. Accusations were levelled first at the women who had brought the water to whet the blades. They would accuse the sharpeners. Those men, questioned in turn, would blame the people who had taken the axe and the knife from them to the slaughter. The messengers would accuse the carver, who laid one final charge. The true shame, he would argue, lay with his blade. And there the buck would stop. For when the knife damned itself by its silence, the axe was formally acquitted and the guilty weapon was hurled into the sea.
Although the modern mind tends to picture Greek courtrooms as sunbleached temples to debate and deliberation, a similar tension between reason and unreason characterized the rituals that were used to resolve actual crimes in fifth-century Athens. Freemen had gained the right to judge – which they would exercise not in groups of ten, but in assemblies of up to a thousand and one – but while they were building a fizzing, babbling democracy, seventy silent per cent of the adult population remained legal nonentities. Women were permitted to litigate only through guardians, while slaves could not even give evidence except under torture, on the strength of a theory that they were constitutionally incapable of telling the truth unless subjected to great pain.
Trials for homicide, a touchstone of the social order in any close-knit community, were not just affected by superstition but founded on it. It was commonly believed that killers exuded the miasma, a vapour so abhorrent to the gods that the slightest whiff could incite them to rage, so despicable that those around whom it clung were barred from temples, games, and marketplace – and so persistent that only a trial could dispel it. The origins of the miasma are as misty as those of any myth but its existence in fifth-century Athens was a firmly established sociological fact. Murder trials were held outdoors to minimize the risk of infection, and at least one defendant relied on its reality to prove his innocence, pointing out to his judges that he had recently sailed in a ship that had not sunk. Killers sometimes attended court to purge themselves even when there was no one to prosecute them – as might happen if the deceased was a legal cipher like a slave – and one Athenian tribunal, the prytaneion, was dedicated to nothing but the prosecution of killer beasts and murderous objects.
(#litres_trial_promo) Defendants who had been exiled for one murder but wanted to cleanse themselves of a second charge were tried in the most prudent court of all. It convened at a stretch of Athenian shoreline called the Phreatto where the accused addressed his judges from a boat, which bobbed offshore at a suitably circumspect distance.
The superstition played an important role in anchoring the criminal trial in Athenian society. It sharpened the only choice open to most defendants in the ancient world – whether to undergo a trial or enter exile – and at a time when predators human and bestial roamed the countryside, those accused had every reason to take their chances in court. It simultaneously made it more likely that accusers would prosecute, for the miasma was also thought to linger around anyone who failed to obtain vengeance. And as it became established that prosecutions were as valid a form of revenge as any other, the premium that was placed throughout the ancient world on life behind a city’s walls also generated its own moral basis for the exercise of judicial power. The law codes of Israel and Judah instructed municipal officials to grant sanctuary to killers only if they agreed to stand trial, and in Athens, where idealization of the city ran especially deep, it became established that judgments were binding, whether right or wrong. A willingness to take complaints to court and abide by judicial rulings became, literally, the civilized thing to do.
No ancient trial better illuminates the development than the most famous one of them all: the prosecution of Socrates, charged in 399 BC with having invented new spiritual beings and corrupted Athenian youth. The 70-year-old was a metropolitan fixture at the time of his prosecution: an ugly, acerbic and provocative philosopher who had spent decades haranguing hecklers and debating passers-by on the nature of the universe. Through a series of historical accidents, the accusations have entered popular history as the persecution of a sage, condemned by a city that could not bear to hear some harsh truths about itself. The assessment obscures considerably more than it illuminates.
It stems from the eyewitness reports of just two men – Socrates’ pupil, Plato, and an acquaintance called Xenophon – and neither is a reliable narrator. Plato produced the more comprehensive account, but the future philosophical colossus, then a mere prodigy of 28, omitted to record much of the crucially important political background to the case. Assumptions of style and relevance undoubtedly played some part in that, but so too did the fact that Plato idolized his teacher and was concerned throughout to portray him in the purest light. One effect has been to consolidate an enduring popular myth that the charges were more irrational than they were. Another has been to blur one of the most important aspects of the trial. Plato’s account leaves no doubt that the prosecution pitted the community against the individual, but its outcome illustrated how Socrates was bound to Athens as much as it showed his ability to stand up against it.
The Athens that put Socrates on trial was a shadow of the city that Aeschylus had glorified half a century before. Three decades of war with Sparta, its militaristic rival, had recently come to an end. The Spartans had vanquished the Athenian navy and then reduced the city’s starving population to unconditional surrender before destroying its fleet and demolishing its walls. The physical collapse was rapidly followed by political disintegration. A despotically inclined citizen called Critias had established a collaborationist oligarchy known as the Thirty, and for eight months Athens became a police state, terrorized by bands of dagger- and whip-wielding thugs who daily murdered opponents of the new dispensation. Around fifteen hundred people were summarily executed – almost as many as had died over the previous ten years of war – before the terror came to an end in 403 BC. The restored democracy declared an amnesty for political offences in the interests of peace – but plenty of Athenians remained eager to settle accounts.
Socrates was among those who paid, heavily, but he was not chosen at random. No one has ever been entirely sure what ideas he expounded, because he wrote nothing and owes his philosophical footprint to Plato; but among the tenets later attributed to him were a number that chimed neatly with those of the oligarchs. They included a belief that wise individuals could gain insights into absolute truths – a claim that was well suited to those who subscribed to the ‘rule of the best’, or aristokratia, and who pointed out that democracy could guarantee neither wisdom nor justice. It is also known that Socrates was not only an indirect inspiration to the enemies of democracy. He had taught several men closely associated with the Thirty – one of whom was none other than Plato, connected to the aristocrats by a web of social and family connections. Another was a second cousin to Plato – Critias himself. As if that did not make the old man suspect enough, he was widely known to admire Sparta, a fact so notorious that the playwright Aristophanes had mocked him for it throughout his comedy, The Clouds.
None of the smears had much substance. Whatever Critias may have taken away from his lessons with Socrates, the older man remained sufficiently independent to disobey an order to arrest an innocent man during Critias’ time in power. The single-mindedness of Spartan society certainly appealed to the philosopher in Socrates, very likely because he saw in its rigour a triumph of the human will. The totalitarian shadow of such beliefs is now apparent, but it could not have been to Socrates, and his admiration for Sparta seems to have resembled the rose-tinted feelings that some twentieth-century intellectuals once harboured towards the Soviet Union – symptomatic of idealistic impatience rather than venomous treachery. His ideological flirtations did not, in any event, stop him serving Athens loyally during the war, both as a civic officer and as a soldier.
There is little doubt, however, that the capital charges against Socrates, though framed in moral and religious terms to get round the amnesty for political offences, were effectively ones of treason. Although Plato chose not to record the speeches of the three accusers, the allegation was that he had lent aid and comfort to Athens’ enemies at a time of war.
Plato’s account of Socrates’ trial portrays the older man as a model of integrity, as determined to expose the weaknesses of the case against him as he was resolute not to save himself through flattery. In his record, the snowy-curled philosopher, standing before 501 fellow citizens, began with the traditionally disingenuous plea of the seasoned orator – an apology for his inarticulacy – before launching into a speech that honoured nothing but the truth. He opened by telling his listeners that the oracle of Apollo at Delphi – the source of wisdom visited by, among others, Orestes in the Oresteia – had identified him as the wisest person alive. Although initially puzzled, he had come to realize why – for he more than anyone else appreciated the limits of his own knowledge. The charges against him were however nonsense. They accused him of teaching young people to believe in new gods, and he had never done that. It was true that a spirit whispered in his ear, but it was a travesty to call that spirit a god. Its voice simply told him to speak plainly and ask awkward questions, and although such behaviour had made him unpopular, he would not stop even if acquitted. He was like a horsefly on the lazy beast of Athens. His judges would spare him if they were sensible, but he suspected that they would sleepily swat him down instead.
Despite the uncertainty over what Socrates taught, it has always been known how he taught it – essentially by prodding his listeners to conclusions that theoretically represented truths that they already knew – and there can be no better demonstration of the technique than the performance recorded by Plato. Some people find the speech moving, while others consider it the preaching of a prig; but whatever the best way to characterize Socrates’ defiance (and Xenophon claims that he simply wanted to die) it won him few friends. He inspired such hostility that he had to ask for silence several times, and although shouting, clapping and booing were common at Athenian trials, when the judges voted, by dropping pebbles into earthenware jars, about 280 of the 501 were for conviction.
Athenian law required that Socrates propose his own sentence, but his response to conviction was to become even less conciliatory. Xenophon recorded that he refused to suggest anything. Plato has him telling the judges that what he most deserved was maintenance at state expense for the rest of his life, dismissing exile with the explanation that the judges were too likely to impose it if he proposed it, and finally condescending to pay a derisory fine. The old man’s supporters swiftly multiplied his offer thirtyfold, but the damage was done. When the ballots were counted, at least eighty of those who had supported his acquittal were now voting for his death. Still Socrates remained undaunted. He would not weep or wail to save himself. He looked forward to meeting the immortals. ‘Now it is time that we were going, I to die and you to live,’ he concluded. ‘Which of us has the happier prospect is unknown to anyone but God.’
Plato’s record, for all its bias, must be largely accurate – not least because his contemporaries would otherwise have written spirited corrections – but Socrates was not condemned simply because he was too honest to deny his genius. The city had just imploded after the most bitter war in its history, eviscerated by a Sparta that he idealized, and those judging him would almost all have been touched by the brutality of the Thirty. When he claimed exalted insights and spoke of a spirit that whispered into his ear, they would have recalled that his wisdom had been taught to traitors. To many of those who heard him, he was neither a harmless crank, nor a seeker after truth. He was an accessory to mass murder.
But the conflict between Socrates and the state would have an unexpected ending. After spending a month in his condemned cell, considerably more jolly than his morose acolytes, he was visited by a pupil called Crito who told him that an escape had been organized. Socrates, however, refused to countenance the idea. He had voluntarily attended his trial instead of exiling himself, he reminded his old friend, and he invited him to contemplate what the laws of Athens would think about the proposal if they were able to speak. As far as Socrates was concerned, they would be horrified. ‘Do you imagine that a city can continue to exist and not be turned upside down,’ they would ask, ‘if the legal judgments which are pronounced in it have no force but are nullified and destroyed by private persons?’ Socrates owed it to the city to stay. It was only through its laws that his parents had been able to marry each other and that he and his children had received their education. He had no more right to undermine an Athenian law that was being wrongly enforced than he would have had to retaliate against his father or his employer.
The willingness to yield to judgment after so steadfast a defence was remarkable enough, but Socrates would now bow even lower. For he did not simply submit to punishment – he carried it out. Athenian law allowed some capital offenders to purchase poison from the state, and Socrates did so. Plato records that he drained his glass in one gulp while disciples wept uncontrollably, and took his leave of life by asking Crito to sacrifice a cock to the god of healing. The pain was over. ‘Such…was the end of our comrade,’ observed Plato, ‘the bravest…wisest and most upright man [of our time].’
As such remarks incessantly remind the reader, Plato was writing in large part to tell Athenians that their verdict had been an awful mistake, but the significance of his account can hardly be overstated. The arguments that he put into Socrates’ mouth, idealizing the law while condemning those who misapplied it, would reverberate down the centuries. They would give birth to the notion that rules can be trusted even when humans cannot, inspiring ideals like the rule of law and the notion that some rights are inalienable. They would have a darker side, underpinning the authoritarian vision of a state that knows best and civil liberties that are always contingent. The record also showed, for the first time, how trials can enforce judgment by turning defendants against themselves. It was a development that would be seen time and again, whenever communal values and political institutions grew sufficiently strong to harness the force of the individual conscience. Its significance was summarized by Sigmund Freud in an image that bears repetition, even if the psychoanalytical theories underlying it might not. ‘Civilization,’ he wrote, ‘obtains mastery over the individual’s dangerous desire for aggression by weakening and disarming it and by setting up an agency within him to watch over it, like a garrison in a conquered city.’
The conventional bridge from Athens to the modern world is the civilization that conquered Greece in 200 BC – Rome. By then, the Republic had a legal culture that was already some three centuries old and its jurists were on the way to developing complex rules of contractual and property law, but its notions of criminal justice would never become quite as sophisticated. Spectacular treason and conspiracy trials would punctuate Roman history, but they were as political as they were principled: an opportunity for ambitious Romans to rally their supporters, display their power or publicly turn the tables on their rivals through a successful prosecution or defence. As in Athens, citizens facing a capital charge had the choice of departure or submission – required either to exile themselves, or attend court unwashed, unshaven, and in shabby mourning dress – but such ritualism rarely stretched to soldiers and never touched the cases of slaves. Roman law had originated in priestly mysteries just as holy as those of any other culture, but justice in the empire was a tool rather than an ideal, wielded by magistrates whose role was to police an empire rather than to honour a tradition.
The most distinctive feature of Roman penal laws was, unsuprisingly, not the trials they mandated but the punishments they prescribed. Prisoners of war and those convicted of murder, arson, or sacrilege might be executed at the arena – burned alive as a warm-up act, or offered as fodder to hungry beasts while the gladiators took a breather. The most notorious prosecution in Roman history is accordingly remembered not for the perfunctory ritual of condemnation but for the horrors that were reportedly inflicted subsequently: whether Jesus was convicted by the Sanhedrin or Pontius Pilate pales into insignificance against his scourging, whipping, and crucifixion. Other penalties made his fate look almost mild. A debtor, after sixty days in prison, was punishable by execution or enslavement at the election of his creditor – and if the insolvent owed money to more than one person, the plaintiffs could adjust their losses (among other things) by collectively tearing him apart limb from limb. Most rococo of all was the punishment imposed on those who killed a parent. The parricide was beaten with rods until blood was drawn, and then drowned in a sack with a dog, cock, monkey and snake, or some writhing permutation thereof.
The allure of Rome was such that Europe’s lawyers would never stop asserting a Latin pedigree for their own legal theories, but a historical firebreak divides the classical and medieval worlds and the claims would very often be wishful ones. Rome’s criminal laws in particular would reach modern Europe only in a highly warped form. There was one aspect of its criminal justice system, however, that was destined to have a lasting and widespread impact, in the field of criminal law as much as any other. The Romans, consummate intriguers that they were, had become fascinated by the Greek art of persuasion, and in the first century BC a defence lawyer called Marcus Tullius Cicero restated the rules of rhetoric in a form that has survived to the present day.
Some of Cicero’s theories were very specific to his time and place. He advised, for example, that anger was best expressed with high-pitched staccato phrases and that speeches should always be made with the right hand extended like a weapon. Energetic passages, he felt, ought to be both introduced and concluded with a vigorous stamp of the feet. But he also possessed a cynicism that was timeless. Advocacy, he claimed, was about advancing ‘points which look like the truth, even if they do not correspond with it exactly’, and he was said to have boasted twice of winning acquittals by throwing dust into his judges’ eyes. His own life encapsulated the mixture of brutality, efficiency, and superstition that characterized Roman criminal law – and never more so than when he took leave of it. He was one of the first people to theorize that laws presupposed the right to a trial, but he personally arranged for several summary executions in 63 BC, and he himself was assassinated twenty years later on the orders of Mark Antony, then one of Rome’s ruling triumvirate. The posthumous treatment of the 63-year-old was eloquent comment on the judicial system that he had come to personify. The rostrum of the Roman Forum, from which he had won so many hearts and minds, was adorned with his severed head and hands. Mark Antony’s wife is said to have taken an even more symbolic revenge. Cicero had recently attacked her in several vitriolic speeches, and according to one Roman historian, she now inflicted the most poetic injustice of all, driving a hairpin through the great orator’s tongue.
Rome formally adopted Christianity as its state religion during the fourth century AD. The Holy Roman Empire would loom large in Europe’s history over the next millennium, inspiring countless wars between popes and princes who sought to cloak themselves in its pseudo-legitimacy, but Roman culture itself would collapse long before the nations of medieval Europe began to emerge. In the middle of the fifth century, waves of invaders thundered out of central Asia and set off a chain reaction of hostilities that soon robbed the Empire of its heart, as barbarian incursions caused the imperial capital to relocate to Constantinople. In the late 520s, Emperor Justinian had his lawyers produce the Digest, a codification of virtually every Roman edict and legal theory ever penned, but his honouring of one tradition was accompanied by the evisceration of another. He simultaneously closed Europe’s last institutional link to ancient Greek philosophy, the Athenian Academy that Plato had established to perpetuate the teachings of Socrates some nine centuries before. A curtain was falling on the ancient world.
Scientists have recently postulated that the impact of a comet or a volcanic eruption set off catastrophic climatic cooling during the mid 530s and, whether or not they are correct, the decade marked the beginning of four centuries of unprecedented gloom. The Black Death reached Europe for the first time, spreading like an inkblot from its southeast corner, and more marauders were soon storming in from the steppes. By the middle of the next century, an entirely new horde was sweeping out of Arabia behind the standards of Islam, conquering, converting, or killing all in its path. Europe’s Vandals, Franks, Goths, and Celts were meanwhile stampeding about like beasts in a forest fire, fleeing disaster one year only to shove their neighbours towards it the next. It was the beginning of the era that the peoples of western and southern Europe would come to call the Dark Ages. As monasteries were abandoned and monks forgot how to read, Christendom dropped the baton of learning that had been passed around the Mediterranean for a millennium. By the time it recovered its wits five centuries later – thanks in large part to translated texts and fresh commentaries preserved by Arab and Persian scholars – Greece would be barely a memory, and Rome’s traditions would have been bastardized almost beyond recognition.
Two peoples would clamber towards the top of the heap. The first were the Germans, a cluster of tribes originating somewhere in Asia, who ousted the Celts from a vast chunk of central Europe. While some established the settlements that would eventually coalesce into Germany, others, known as the Franks, settled west of the Rhine in the region known as Gaul. The second group – the Scandinavians – would arguably have an even greater reach. A contingent of Danes invaded Britain during the mid fifth century, accompanied by two north German tribes known as the Angles and the Saxons, and a later wave of emigrants travelled considerably further during the 700s. In search of a little living room, the Norsemen got as far as America and North Africa, established permanent colonies in Greenland, Iceland, and Russia, and caused so much havoc among their erstwhile cousins in England that the country had to be partitioned in the late 800s. (They would only stop sticking their oars into the island’s politics in 1016, when Denmark’s King Canute brought the interference to a neat conclusion by taking over entirely.) Viking raids in Gaul led to a compromise no less significant when, in 911, King Charles the Simple persuaded a red-headed raider called Rollo to swear allegiance in return for control over a large region near Rouen. Rollo reportedly displayed little fealty to the Frankish monarch, delegating the job of kissing Charles’s foot to a flunky who upended the royal leg. His hairy warriors would, however, become some of the truest sons of feudalism – for as they swapped their longboats for horses, Gaul became France and the Norsemen became the Normans.
The barbarians, whose customs incorporated ingredients from as far afield as Mongolia and India, transformed Europe’s notions of justice just as dramatically as they affected every other aspect of continental culture. Although the Romans’ concepts of contractual and property law lived on, their pragmatic techniques of dealing with crime expired or mutated as semi-rational inquiries gave way to rituals that relied squarely on the gods. For whereas the deities of Rome and Greece were never called upon to adjudicate actual trials, few areas of human endeavour seemed to fascinate those of the barbarians more. Celtic Druids caged troublemakers in mammoth wicker effigies that were periodically set ablaze to propitiate their gods. German priests enjoyed a similar monopoly over judgment and dispensed punishments that were regarded as offerings to the god of war. Scandinavian religion produced one of the most bloodthirsty ceremonies of all. In honour of Odin, criminals were strangled from long wooden beams and stabbed repeatedly while they died. Odin’s time was running out, but the ritual that honoured him was destined to last – for the Norse gálgatré would come to be known as the gallows tree.
The appeal of vengeance was even stronger among the barbarians than it had been for the Athenians. Few activities were quite as satisfying to German and Scandinavian warriors as the thrill of hunting down and annihilating a kinsman’s killer and they did not even theoretically leave the job to the gods. Whereas the Furies of Greece had stood ready to wreak vengeance if a kinsman failed to do so, the closest barbarian equivalent were the German Valkyries, and they were responsible only for hovering over battlefields and transporting fallen warriors to Valhalla. The shame of cowardice and the spur of a fame to outlast death were enough to make the barbarians settle scores themselves.
The eagerness for revenge finds expression in all the great literature of the era. The epic poem of Beowulf, written in the tenth century and composed up to three hundred years earlier, was concerned throughout with justice, and it was owed as much to the dead as to the living. On occasion, the dead even had the prior claim. When King Hrethel’s eldest son was accidentally killed by a younger one, the monarch was plunged into despair – not only because his firstborn had died, but also because kinship rules forbade him from killing the survivor.
No less vivid is the Norse myth of Balder the Beautiful. Balder, the god of light, was so beloved that when he dreamed of death, his mother Freya was able to persuade almost every single object on earth not to hurt him. She failed to ask only the mistletoe, a plant so young and feeble that it seemed entirely harmless. The omission would, needless to say, have consequences. As news spread around Asgard that Balder was invulnerable, his fellow gods began playfully to pelt him with battleaxes, clubs, and spears. Only two stood on the sidelines: Loki, god of mischief, and Hodur, the blind, dim twin of brilliant Balder. Loki, unremitting prankster that he was, had made it his business to learn mistletoe’s secret, and he asked Hodur why he was not joining in the fun. Hodur explained sadly that he had no missiles, and wouldn’t know where to throw them even if he did. Loki offered to assist. He happened in fact to have a bow and a mistletoe dart. And thus it was that while Balder was joyfully bouncing off hardware from every other direction, Loki guided Hodur’s aim and a whirring arrow skewered like a stiletto through Balder’s beautiful forehead. The god teetered and toppled, and had barely hit the ground before a fellow deity called Wali had sworn neither to comb his hair nor wash his hands until he had sent the guilty party to the underworld. But it was not Loki whom he had in mind. His first concern was with the killer himself – and it was hapless Hodur who was hunted down and despatched to the shadowlands of Hel.
Christianity made steady headway through the new peoples, but the potency of such traditions was such that it was converted almost as much as the pagans were. The idea that the morality of a deed depended on the doer’s state of mind, though seen throughout the Bible and common among the Athenians and Romans, steadily gave way to a sense that acts were good or evil, regardless of intention. Christianized rulers often enacted laws based on the Bible but, keenly aware of the fragility of their authority, generally did very little to enforce them.
Laws were not, however, abandoned. Although rulers could not make their subjects be good, they began to establish some control over their feuds and squabbles by fixing guidelines for compensation, and asserting that complainants could resort to violence only as a last resort. The tariffs varied depending on the seriousness of the offence. The laws of the Salian Franks, written down towards the end of the fifth century AD, required three shillings from those who defamed someone by calling them a fox or a hare. Abducting a virgin in Kent a century later entitled her owner to fifty shillings. Among the Frisians of the late eighth century, the value of a life ranged from cost price, for a slave, to eighty shillings for a nobleman.
Such codes hardly made for the rule of law, but each reflected the development that Aeschylus had once idealized in the Oresteia: the attempt to formulate collective justice as an honourable substitute for private revenge. The same process seems to occur whenever a community becomes sufficiently self-aware to recognize that it has disputes to resolve. Cultures around the world have used countless different methods to contain the violence. Among the Inuit of Greenland, disputants once abused each other in song and proved the superiority of their claims through feats of great athleticism. The Tiv of Nigeria chanted insults at their opponents, and tied them to trees. Massa clans in Cameroon–Chad used to thrash out their differences by fighting huge battles with very small twigs. And the proto-litigants of medieval Europe relied on a very particular technique of their own – the oath.
The oath has probably been guaranteeing truth for as long as humanity has been able to envisage a power more vengeful than itself, and the promise to the divinity concerned has always been a terrible one. Accuser and accused in an Athenian murder trial would swear on their children’s heads while standing atop the entrails of a boar, a ram, and a bull. One method of renewing the Covenant among the ancient Hebrews involved walking between the two halves of a bisected calf. Medieval Christendom used tokens of mortality no less fearsome, typically the body parts of saints, and oaths formed the basis for its earliest trials – ceremonies known as compurgation, at which defendants proved their innocence by gathering together people willing to swear to their cause.
The ritual was enshrined in writing in the very first barbarian law codes, and by the seventh and eighth centuries it was being practised across Europe. Under open skies, each member of the team – known collectively as compurgators, conjurors, or jurors – would swear upon a shard of holy shinbone, say, that the defendant had not committed the alleged crime. The number of witnesses required depended on factors that ranged from the status of the suspect to the nature of the offence. Queen Uta of Germany, accused of adultery in 899, was acquitted only after eighty-two knights stepped forward to confirm her chastity. It would have taken six hundred people to acquit an accused poisoner in Dark Age Wales. On the other hand, those lucky enough to be deaf, dumb, aristocratic or pregnant were often accorded special privileges, and anyone accused of crime in seventh- and eighth-century Spain was downright lucky. Suspects who swore to the baselessness of charges laid against them were not only absolved of guilt, but also awarded compensation at the expense of their accusers.
Such proceedings, though reliant on witnesses, were not inquiries. The oath, far from ensuring the reliability of evidence, was the evidence; and jurors swore to their support of a defendant rather than to what they knew of a case. One consequence was that they were liable in some places to punishment for perjury if they got it wrong. Another was that any formal defect in the ceremony allowed people to lie with impunity. Swearing falsely on a saint’s relics was ordinarily a one-way ticket to hell, but if the reliquary was empty – because, for example, the testifier had secretly removed its contents – a person could swear that black was white with no ill effects at all. Similarly, it was a grievous sin to speak falsely to a priest while holding a consecrated cross, but fine to clutch the crucifix and lie blind if the only people present were non-clerical. In medieval Europe, breaking a promise was of little consequence. The fault lay in doing so after God had been asked to watch.
At the end of the first millennium AD, attitudes towards criminal justice in Europe therefore stood at a cusp. Religious and secular authorities were trying to encourage individuals to give courts a chance before taking matters into their own hands, but the belief in vengeance remained alive and well. The passions of the feud were being accommodated rather than ignored, and they were always liable to spill over beyond the institutions designed to contain them. No tale better captures the frailty – and peculiarity – of the attempts to tame gang warfare with the oath than the Icelandic Saga of Burnt Njal.
The story was written almost three centuries after the island’s conversion to Christianity in AD 1000, but it depicts a land rumbling to rhythms far older: a volcanic place of trolls and sprites, where the earth would more likely shrug its shoulders than a man would turn the other cheek. Feuds erupt and cool throughout the fifty years spanned by the work, but the narrative hinges at a point when men loyal to a chieftain called Flosi burn the eponymous Njal to death in his farmhouse. Njal and his wife steadfastly await the flames from the discomfort of their bed and his immediate family chooses to perish alongside him, but one relative determines to escape. Nephew Kari Solmundarson clambers to the rafters and, treading timbers that are sweating smoke, reaches the edge of the building. Seconds after he leaps from the roof, his hair and clothes ablaze, it crashes to the ground. After dousing his sorrows in a nearby stream, he embarks on the mission that will make his name a byword for good fortune throughout Iceland. In agony though he is, disfigured though he is, and bereaved though he is, Kari is also very, very lucky. He has survived to seek revenge.
Outrage mounts as he moves from kinsman to kinsman with news of Flosi’s crime. Thorhall Asgrimsson, a foster son to Njal, is so apoplectic that blood spurts from his ears and he collapses to the ground – a moment of weakness for which he expresses great shame – but he will prove a stalwart ally. For Thorhall Asgrimsson possesses a quality that is hardly less magical than good luck: knowledge of the law. And Njal’s friends and kinsmen agree that it is time to exact an awful revenge. They will take the killers to court.
On being given notice of suit, Flosi ponders whether to settle the case, but is persuaded by a fellow arsonist that, having shown such defiance, it would not be proper to back down. He decides instead to engage a lawyer. After ruling out one candidate, a warrior’s kinsman, on the basis that whoever takes the job is likely to die, Flosi approaches Eyjolf Bolverksson, one of Iceland’s most formidable pleaders. Eyjolf, resplendent in scarlet cloak, gold headband, and silver axe, initially refuses to have anything to do with the case. He is no cats-paw, he declares, ready to meddle in a dispute that has nothing to do with him. Flosi, confronted with a lawyer who speaks of integrity, knows just what to do. He dangles a chunky gold chain from his arm, and Eyjolf rapidly reconsiders. ‘It is only proper for me to accept this bracelet in the face of such courtesy,’ he purrs. ‘And you can fairly expect that I shall take over the defence and do everything that may be required.’ It was a bad move. Icelanders, like virtually every people before and since, had contempt for anyone so dishonourable as to require money to plead for someone’s rights. Eyjolf’s fictional fate was sealed.
The trial takes place on one of Iceland’s endless summer days at the Law Rock, a lava cliff overlooking a large valley and a silver river snaking far below. From across the island, jurors, chieftains, and onlookers converge around the booths that contain the legal teams. All the lawyers are, as is traditional, armed to the teeth and in full battle regalia. On the Rock itself stands Skapti Thoroddsson, the omniscient Law Speaker, who bears the awesome responsibility of memorizing the law and publicly reciting a third of its provisions every year. Kari’s nine jurors are sat on the riverbank, their job not to assess evidence but to swear that procedural steps have been performed correctly. A hush descends, and lawyer Mord Valgardsson steps up to the Rock. In words that echo around the valley, he swears that he will plead according to truth, fairness and law. He calls witnesses to testify that he has been duly appointed and has given the defendants notice of the action. He declares that he has brought nine sworn men to the Law Rock. And do the defendants, he demands, have any objections?
All those watching agree that the performance is a confident one – but Eyjolf Bolverksson, sporting his scarlet cloak and silver axe, then delivers a response that threatens to cripple Mord. Two of the jurors, he contends, should be disqualified because they are related to him. The lawyer, previously so eloquent, is reduced to silence. Consternation spreads across the Rock. The prosecution has barely begun, but seems already to be in ruins.
Only one man can save the day. Thorhall Asgrimsson, bedridden by a monstrous leg inflammation, has been left at home – so upset not to be present that he had waved off his kinsmen with a face as red as beetroot and tears tumbling like hailstones – but his moment of glory has come. Messengers run to the great jurist’s cot with news of the crisis and Thorhall, amused at Bolverksson’s audacity, explains what to do. The advice is relayed to Mord, who swiftly resumes his place. The fact that two of the jurors are his kinsmen does not disqualify them, he retorts. Only kinship with the accuser himself would have that effect. It is, by general consensus, a brilliant rejoinder. Thorhall Asgrimsson, from his sickbed, has saved the day.
A chastened Eyjolf admits that he had not anticipated so unerring a counterstroke, but promptly pulls another arrow from his quiver. Two of the jurors, he declares, are ineligible to swear because they do not own a house. As the jurors rise uncertainly, another wave of anticipation ripples through the spectators. The challenge sounds even more excellent than the first – but the messengers who relay it to Thorhall soon return with more advice. Mord strides to the riverbank, his confidence returning like the tide, and invites both men to resume their seats. The objection is nonsense, he booms. A juror need not own a house. It is enough if he possesses a milk cow. Amidst tumultuous excitement, the point is once again referred for adjudication to Skapti Thoroddsson. The crowds wait in an atmosphere so tense it could be split with a battleaxe, until the Law Speaker emerges from his booth to announce his ruling. The prosecution is right. It is enough to own a milk cow.
Eyjolf finally lets fly with a plea that many think the most powerful of all. Four of the jurors must stand down, he contends, because there are other men who live closer to the scene of the crime. The point is, Thorhall accepts, a superb one. But not so superb as to be unanswerable. Told what to say, Mord steps forward once again. The four jurors are indeed disqualified, he concedes – but a majority verdict will suffice, and five of the original nine jurors remain. For long minutes, the Law Speaker silently ponders the claim. And then he rules. The point is good – so good, indeed, that he is astonished. Until that moment, he had believed that he was the only man alive who knew it to be the law.
The time has come for Eyjolf Bolverksson to advance Flosi’s defence. The case has, he briskly declares, been brought before the wrong division of the Law Rock. He is right, but a new action is swiftly lodged in the correct court and, as the pace of the case accelerates, the arguments become personal. Kari’s side has learned about the bracelet that Eyjolf accepted to argue the case, and they now accuse Flosi of bribery and Eyjolf with procedural incorrectness – each a grave offence punishable with outlawry and confiscation. But just as it seems that Kari’s team has landed a knockout blow, Mord Valgardsson makes a fatal blunder. Rather than await Thorhall’s advice, he impatiently demands that six judges in the new court stand down and that the others award him a verdict. For ineffably complex reasons of Icelandic jurisprudence, he should have asked for twelve judges to be removed instead. The mistake is a serious one. Far from outlawing Flosi’s posse, he has paved the way for Njal’s own kinsmen to be exiled.
A messenger takes the news to Thorhall who, saying not a word, heaves his lame leg from his bed, grasps his spear with both hands, and gouges the abscess from his thigh. Oblivious to a stream of blood and pus that pours from the wound, he strides to the Law Rock. The first man he encounters is Grim the Red, a member of Flosi’s legal team. Thorhall, great jurist though he is, has tired of pleadings and with a single thrust of his spear, he splits Grim’s shoulder blades into two. Several of Thorhall’s kinsmen are stricken with shame. That a sick man should be so brave as to murder his enemies while they stand aside disgraces them all.
The next several pages of the saga describe, with great delight, the mayhem that now ensues. Across the Law Rock weapons fly, bones crack, body parts are pierced, and at least one bystander is hurled headlong into his boiling cauldron. When the Law Speaker suggests to Snorri the Priest that they negotiate a cease-fire, he is speared through both calves and Snorri throws his monks into the fray. Lucky Kari himself, zipping through the mêlée like a wasp among bees, parries, pirouettes and slays with sublime assurance, even managing at one point to catch a spear in midflight and return it quivering into the body of its owner. The casualties mount until Flosi’s dishonourable lawyer is spotted by one of Kari’s companions. ‘There is Eyjolf Bolverksson,’ he roars. ‘Reward him for that bracelet.’ Snatching a spear from a friend, Kari does just that – and the blade that hurtles clean through the renowned pleader’s waist finally resolves the crisis. Each side withdraws in order to treat its injured and bury its dead, and those men still standing return to the Law Rock the following morning. ‘There have been harsh happenings here, in loss of life and lawsuits,’ observes one of Flosi’s team. The time has finally come to bury the hatchet, before matters get out of hand.
The trial is not typical of its era, in that defendants rather than prosecutors were usually the ones required to produce co-swearers, but the Saga of Burnt Njal is based on actual events and accurately depicts the hazards of litigation in late medieval Europe. Formalities were an entrenched aspect of legal procedure everywhere – so much so that a word out of place could cost the speaker a fine, the case or his life, until well into the fourteenth century. Across northern Europe it remained customary to attend one’s case fully armed until at least the late tenth century, each side ideally signalling compromise by clashing together weapons and shields (a ritual known as the weapon-touch or wapentake), and Icelandic trials remained fraught with danger for considerably longer. Violence escalated well into the 1200s, with clubs giving way to small arsenals, until the country’s bishops were finally able to persuade enough litigants to leave their weapons at home for peace to take hold.
Compurgation, rough and ready though it was, was never entirely senseless. It could show a divided community where the balance of power lay. At a time when it was common knowledge that perjurers were liable to be frozen rigid, flipped backwards or reduced to dwarfish proportions,
(#litres_trial_promo) it also encouraged honesty – even if confusion over whether witnesses were swearing to knowledge or belief meant that honesty was never a reliable guide to accuracy. But even in the depths of the Dark Ages, there were sufficient objections to the system that another form of trial process became pre-eminent. As might be expected of an irrational age, the alternative tapped even more deeply into the supernatural. Once a sufficiently large number of people had sworn to someone’s guilt, he or she might be subjected to an ordeal, typically using fire or water, at which God was invited to rescue the innocent by way of a miracle. If He did so, the person making the accusation would be punished. If He declined the opportunity, it was the accused who stood condemned – to banishment or death.
The procedures, unknown in the Bible,
(#litres_trial_promo) probably rested on traditions of elemental worship that the Germans picked up directly or indirectly from India, but the Catholic Church took to them with gusto. As early as the sixth century, a distinguished bishop called Gregory of Tours was informing Christendom that trial by boiling water could be used to disclose God’s will. He told how a Catholic deacon and a heretical priest had agreed to settle their doctrinal differences by plucking a ring from a boiling cauldron, and how, moments before the test was due to begin, the Catholic was found to have smeared a magic balm onto his arm. As the honour of the True Church had teetered in the balance, a stranger from Ravenna had stepped from the crowd and plunged his own arm into the seething waters. The newcomer, whose name was Hyacinth, took some time – reportedly telling bystanders as he groped around that the water was a little chilly towards the bottom and pleasantly warm at the top – but within an hour he had the ring safely in his grasp. His rival then tried his luck, but had the flesh boiled off the bones up to his elbow. ‘And so’, Gregory gravely noted, ‘the dispute ended.’
By the ninth century, a similar ceremony was being used to resolve serious accusations in churches across Europe. While a fire burned in the vestibule, mass would be celebrated and the priest, clutching a Bible, would lead a line of cross-bearing and censer-swinging clerics towards the kettle. To the sound of psalms and the scent of myrrh, the water would then be blessed in the name of the Trinity, Resurrection, and Armageddon, and God would be implored to illuminate that which had been secret. Onlookers would meanwhile pray for the accused’s vindication or destruction according to taste, and he or she would then try to remove a stone from the bubbling waters. The resulting wound would be bandaged and three days later, the priest would remove the dressing and interpret the blister. If he declared it healed, all well and good. But if he pronounced it festering, guilt would be established, and exile or execution would be added to the woes of the accused.
The ordeal of fire switched elements but otherwise followed much the same pattern, requiring defendants to test their flesh against flame and then spend three days praying for a miracle, a merciful priest, or a combination of the two. Glowing iron bars were usually used, but during the eleventh century the mother of Edward the Confessor, Emma of Normandy, was reportedly made to walk barefoot over nine red-hot ploughshares in order to meet charges of an adulterous relationship with the Bishop of Winchester. (If Church chroniclers are to be believed, which of course they are not, she was so manifestly innocent that she had already strolled obliviously across the sizzling blades by the time she asked to begin.) A crusading peasant called Peter Bartholomew underwent an even more spectacular form of trial by fire in 1098. While wandering through the rubble of a ruined church in Syria, he identified an iron pole as the lance with which Jesus had been pierced on the cross. Although similar assertions would put countless others on the fast track to canonization, a faction of fellow soldiers alleged, for reasons unknown, that he was lying. If not, they contended, he would make good his claim by passing through two lines of blazing olive branches. He apparently jumped at the chance to prove his piety, pole in hand, but the story then becomes a little murky. According to Raymond of Agiles, a fierce supporter of Peter’s bona fides, he ambled between walls of flame that were a foot apart and forty feet high, pausing briefly only to converse with the Lord inside the inferno, before emerging unscathed – at which point a mob of admirers excitedly broke his spine. A second account was considerably more sceptical. A third condemned Peter as an out-and-out fraud. Charity, if nothing else, makes it more pleasant to accept Raymond’s recollection, but since even he noted that Peter died twelve days later (‘on the hour set by God’), it probably makes little difference either way.
Several other techniques were used to attract God’s attention. The ordeal of cold water involved immersing bound suspects in exorcized streams or wells, where priests would prod them with poles to see whether they sank or swam. On the strength of a theory that water was so pure that it repelled sin, anyone who floated was convicted; those who sank convincingly enough were vindicated and, with luck, resuscitated. Another type of ordeal, said to be especially popular among the Anglo-Saxons, was the trial by morsel, which required suspects to swear to their innocence and then swallow a piece of blessed bread and cheese without choking to death. It sounds like a procedure that would require a miracle to convict rather than to acquit, but no records survive to confirm or question its effectiveness. One incident from the eleventh century suggests, however, that there were at least some medievalists who regarded it as reliable. The tale concerns the Earl Godwin of Wessex, an eleventh-century maker and breaker of monarchs, who is said to have got up to no good in 1036 while playing host to one Prince Alfred, a young pretender to England’s hotly contested throne. Chroniclers record that Godwin began the evening pleasantly enough, entertaining Alfred at his castle and promising to support his claims, but ended it considerably less cordially by handing him over to his mortal rival, Harold Harefoot, whose henchmen extracted his eyeballs and let him bleed to death. Godwin soon gathered together the requisite number of cronies to swear to his innocence, but Edward the Confessor harboured a lurking doubt and took the opportunity at an Easter banquet seventeen years later to repeat the accusation of murder. Godwin seized a chunk of bread and raised it to the heavens. ‘May God cause this morsel to choke me,’ he bellowed, ‘if I am guilty in thought or deed.’ The chroniclers – none of whom, admittedly, had much time for Godwin – record that he chewed, trembled, and dropped dead.
The notion of God as umpire attained its purest expression in trial by combat. The ritual required plaintiff and defendant to prove that He would take their side in a fight, and after weapons were blessed – to neutralize blade-blunting spells and the like – victory would go to whoever reduced the other to submission or death. There were subtle variations. Women, priests, and cripples generally had to hire professional fighters. German jurisdictions often found other ways to level the odds: a man might be buried waist-deep and armed with a mace, for example, and his female opponent allowed to roam free but given only a rock in a sack. The residents of East Friesland allowed accused murderers to shift the charge onto a third party and prove their innocence by defeating him rather than their accuser. The choices were greatest of all for a defendant in twelfth-century England and France. He could turn the accusation onto innocent bystanders, challenge his own witnesses or, for a few gloriously violent years, appeal a verdict by battling those who had delivered it.
Compurgation and trial by ordeal had little to commend them by modern standards. Although the more blood-curdling ceremonies presumably terrified some guilty people into confessing, only the laws of probability offered any guarantee of occasional efficiency. In an age committed to the notion that a just God was perpetually tinkering with His handiwork, it must however have always been considerably easier to assume the rituals’ effectiveness than to imagine why they might not work. Scepticism was clearly abroad as early as 809, when Charlemagne felt it necessary to bolster ordeals with a law commanding his subjects to believe in them; but even the doubts were generally irrational. Pope Eugene II expressed concerns about perjury during the 820s but he was more worried for the souls of witnesses than the reliability of their evidence – and resolved his misgivings by ordering that defendants undergo the ordeal of cold water instead. Fifty years later, Pope Nicholas I banned trial by combat but he too was no more than suspicious of its value: he replaced it with the ordeal of boiling water, and noted that David’s defeat of Goliath proved that judicial duels might sometimes work.
The mood began to change with the turn of the millennium. As the solstice of AD 1000 came and went with no sign of Armageddon, widespread relief was followed by a sense of rebirth across southern and western Europe. Within less than three years, according to the eleventh-century chronicle of the monk Rudolfus Glaber, men everywhere ‘began to reconstruct churches…It was as if the whole world were shaking itself free, shrugging off the burden of the past, and cladding itself everywhere in a white mantle of churches.’ The physical renewal was complemented by an intellectual revival no less palpable. For the wind that had once moved men like Aeschylus and Protagoras, the belief in reason that had been so long stagnant in Europe, started once again to blow.
Muslim scholars in Córdoba and Persia contributed considerably to the new atmosphere, thanks to their possession of Greek texts that had been lost to Latin Europe for centuries, but so too did the rediscovery in around 1170 of a document that was quintessentially European. And the latter work would ensure that lawyers were at the vanguard of the intellectual revival. For a brightly coloured envelope emerged in Pisa – found, according to legend, by a soldier as he pottered through the ruins of Amalfi – and it contained the core of the vast legal code that the Emperor Justinian had enacted during the dying days of the Western Empire.
The rediscovery of the Digest coincided with a major clash between the papacy and Germany’s imperial throne, and at a time when no source of authority was quite as compelling as tradition, its impact was immense. Clerics were soon flocking to Italy to trawl its text, and as they did so the first great law school to appear in Europe since the days of the Empire coalesced in Bologna. Students were soon producing inventive, ingenious, and mutually contradictory theses aplenty, but when Justinian’s laws were matched against contemporary practice, one fact was stark. They contained not a jot of support for trials by ordeal. The work of canonical scholars, who were simultaneously organizing centuries of papal edicts and saintly pronouncements into systematic compilations for the first time, only made it clearer that the same was true of Scripture. A problem was becoming apparent.
The first generations of scholars hesitated to follow their concerns through, but by the late twelfth century opponents of ordeals were increasingly making themselves heard. One of the most outspoken was Peter the Chanter, a prominent theologian based at the Parisian cathedral of Notre Dame. If trial by battle was so infallible, he wondered, why did people who hired champions invariably prefer seasoned warriors to wizened old men? When three defendants were charged with the same offence, and were therefore required to carry the same red-hot iron in turn, was it really divine intervention that made the last in line least likely to show a burn? And what did it mean to say that God was watching over every ordeal if – as Peter knew had occurred – people were sometimes hanged for crimes that had not even taken place? Peter’s conclusion, reiterated to room after room of spellbound students, was as simple as it was revolutionary. The system tempted the Lord to work miracles more than it tested humanity for its sins, and the clergy should have nothing to do with it.
Complementing such principled criticisms were eminently practical ones. Even at its fairest, the system was as likely to free the guilty as to convict the innocent; and in the hands of priests with an axe to grind, it could be even more arbitrary. So great a discretion in the hands of clerics meant that secular rulers were often suspicious of the system but during the twelfth century the problem became acute. For ordeals finally began to operate against the interests of Catholicism itself.
The late medieval Church was corrupt as old cheese, filled with drunks and fornicators who expected congregations to subsidize their sins, and countless reformers had begun to emerge by the twelfth century. From the Church’s point of view their prescriptions could only worsen the rot. Henry of Le Mans roused rabbles across eastern France for three decades after 1116, with fervent sermons that condemned rituals ranging from baptism to prayers for the dead – and, implicitly, rejected the need for a clergy at all. Peter of Bruis simultaneously led riotous mobs through the south of the country, urging his followers to munch meat on Fridays and make bonfires of their crucifixes, until outraged opponents burned him alive in one of his blasphemous blazes during the early 1130s. Most ominous of all was a philosophical tradition known as dualism. It had been incubating among Christian communities in the Balkans for several centuries and now began to spread through western Europe via the ports of southern France – and it took issue with the Church on the nature of evil itself.
The dualists called themselves Cathars, after the Greek word for purity, and their challenge to Catholicism was profound. Whereas Catholic scholars would be content to spend lifetimes trying to work out why a benevolent and omnipotent God seemed so tolerant of unpleasantness on earth, the heretics plumped for a very simple explanation: that He had no choice. The world in its entirety, they believed, lay firmly under the control of Satan and life amounted to an unhappy moment of incarceration within a tomb of flesh. The soul’s salvation demanded abstention from sex, meat, and dairy products, ideally in person but alternatively through one of the Cathars’ abstemious clerics. Those who grasped the truth and confessed their creed at the blissful moment of death could expect an eternity of ethereal perfection.
The Church was not impressed. It took grave exception to the suggestion that its theology was a delusion founded on a mistake. And although it had its own impressive traditions of self-mortification – running from Origen, a founding father who had castrated himself for love of the Lord, through innumerable pillar-squatting and thorn-bush-dwelling hermits – it had by the twelfth century become extremely reconciled to earthly things. Church propagandists were soon recycling hoary myths of cannibalism, bestiality, and promiscuity that Roman authorities had once used against the early Christians, while Pope Lucius III ordered every bishop in 1184 to smoke out the heretics in his diocese by way of an annual dragnet. The unbelievers continued, however, inexorably to advance. By the end of the century, Catharism was running Catholicism a close second across much of northern Italy. In the Languedoc, a politically volatile region of southern France, there were large pockets where it was not so much a heresy as the orthodoxy.
The crisis came to a head with the advent of 37-year-old Lotario de Conti to the papacy in 1198. The youngish Lotario took the name of Innocent III and a contemporary fresco painting shows him to have a ruddy baby-face, but he was in fact about as ruthless and astute a politician as would ever occupy the Holy See. Soon after his accession, he wrote that the relationship between royal and papal authority resembled that of the sun and the moon – and the papacy did the radiating rather than the reflecting. He had his eyes on a prize: a world that owed its primary allegiance not to kings but to God, and more specifically, to His earthly representative. In pursuit of his vision, Innocent would blast seven kings and two emperors with excommunications and interdictions during his eighteen-year pontificate. But he was also honest enough to recognize that the Church was as much part of the problem as its solution. In a series of letters, he condemned his own bishops for whoring, hunting and gambling while heresy had spawned, slumbering like dogs too dumb to bark – and he now turned, at last, to the challenge that others had spent decades avoiding.
The first element of the counter-attack was put in place over the winter of 1205-6, when Innocent granted an audience to a charismatic Castilian in his mid-thirties called Domingo de Gúzman. The Spaniard, who dreamt as fervently as any heretic of pain and poverty, had already spent time preaching against the Cathars and he had come to Rome hoping for permission to convert infidels on the Mongol fringes of eastern Europe. Innocent saw in his gleaming eye an energy that was needed closer to home. The pontiff sent him straight back to the Languedoc. Domingo returned to find that monks from the wealthy Cistercian order still in slothful charge of the Church’s anti-heresy drive, but he was soon co-ordinating a mission that would transform Catholicism as much as it confronted its heretical opponents. Ostentatiously humble and tirelessly willing to debate any Cathar into the ground, he inspired an increasing number of acolytes – the Dominicans – who would become the spiritual shock troops of Catholic resurgence. The battle for hearts and minds had begun.
At the same time, back in the Eternal City, Innocent was busily exploring the possibilities of a more conventional conflict. Secret requests to King Philip Augustus of France to launch a crusade against the Cathars came to nothing however, the French monarch pleading a prior engagement to destroy King John of England, and Innocent hesitated to sponsor unilateral military action against a nominally Christian region. But Domingo’s disputations and Innocent’s hesitations then came to a sudden end.
On 13 January 1208, one of Innocent’s legates, awaiting a ferryboat on the banks of the Rhône, was murdered by a horse-borne killer. The rider, who ran a sword through his victim’s back, instantly galloped back into the anonymity from which he had swooped, but his bull’s-eye had consequences as momentous as those of any other homicide in history. A contemporary account describes the crisis council that Innocent now convened. Between the stone pillars of St Peter’s, surrounded by a circle of twelve cardinals, he called down a curse upon the assassin and snuffed out a candle, before demanding in the gloom what was to be done. One of his most trusted lieutenants, Arnold of Cîteaux, stood next to a pillar with head bent and then raised his eyes towards Innocent. ‘The time for talking is over,’ he replied. Innocent, his chin in one hand, nodded – and then declared, for the first time in Christian history, a crusade against an enemy within the Church itself.
Greedy barons, eager to participate in a papally sanctioned rampage through the wealthy Languedoc, contributed thousands of troops to the army that set off from Lyons in June 1209. The fighting would last two decades, but the force faced its first test just a month later, at the Cathar stronghold of Béziers. The city’s fate was emblematic of the mentality that had produced trial by ordeal, and constituted a suitably sanguine curtain-raiser to the four centuries of religious zealotry that were about to engulf Europe. While the soldiers prepared for a lengthy siege, setting up their catapults, tents, and latrines on the plains around the city, a group of kitchen boys mounted a quixotic assault on its walls. They somehow broke through. Within minutes, crusaders were pouring into the breach and Arnold of Cîteaux – told that it was impossible to distinguish Catholic from Cathar – was asked for his orders. ‘Slay them all,’ he reportedly murmured. ‘God will know His own.’
The news from Béziers overjoyed Innocent – who postulated that God had deliberately held back from destroying its residents with the breath of His nostrils in order that the crusaders could earn salvation by exterminating them personally – but no Catholic of his intelligence trusted in the sword alone. The Church needed a procedure that could detect the canker before it took hold, and that was a question of law rather than war. Innocent was never likely to think highly of trials that entitled his priests to extort several shillings for boiling a kettle, and having studied law at Bologna and theology at Paris, he would probably have been aware of Peter the Chanter’s theoretical critiques of trial by ordeal. But the most decisive argument was almost certainly a pragmatic one. A suspected heretic would escape punishment if acquitted. Innocent was too hard-nosed a pope to leave the future of his Church to the vagaries of divine intervention.
The papal interest in reform was already evident. Innocent had previously curtailed the use of compurgation in Church disciplinary cases, and in 1199, had approved a novel way of proceeding in criminal cases – per inquisitionem. The new technique entitled judges, in suitably clear cases, to launch inquiries of their own motion. That was, pointed out the pontiff, no more than God had done at Sodom and Gomorrah. The reform was a sign of things to come – and they came at the Fourth Lateran Council of November 1215.
The Council, which lasted three weeks, was an assembly of about four hundred bishops and over a thousand abbots, ambassadors, priors, and proxies from every country in the Catholic world. It was one of the grandest gatherings that Europe had ever seen, a fiesta of fireworks and parades so raucous that more than a few visiting pilgrims were trampled to death. But amidst all the excitement, Innocent remained firmly in control. Seventy reforms were presented to the delegates, for approval rather than debate, and they left few abuses unaddressed. As part of a crackdown on clerical misbehaviour, priests were forbidden from throwing dice, watching clowns, and wearing pointy-toed shoes. Princes were instructed to make Muslims and Jews wear unusual clothes, because too many Christians had been having sex with them and then claiming not to have noticed the difference. Every Catholic was required to make confession at least once a year, on pain of excommunication and burial in unhallowed ground. And tucked away in the package was Canon 18, which prohibited priests from blessing ordeals by water and fire. On 30 November, Innocent exposed a chunk of the True Cross for the delegates’ adoration and sent them home. It would take several years for the reforms to percolate through the continent, but the deed had been done. Since ordeals could not occur without priestly participation, European criminal justice had been transformed for ever.
A thought-provoking way of appreciating the significance of 1215 is offered by Lewis Carroll’s Alice’s Adventures in Wonderland. As any once well-read child will recall, the tale concludes with a trial at which the Knave of Hearts is accused of stealing the Queen’s tarts on a summer’s day and making good his escape. After witnesses testify that jam tarts are made of pepper and accuse the Knave of failing to sign a poem that he did not write, the proceedings culminate in a moment of high drama. The Red Queen, responding to her husband’s suggestion that the jurors consider their verdict, splenetically insists that he has it backwards. ‘Sentence first –,’ she screams, ‘verdict afterwards!’ The merest infant knows that she is in fact the one who is wrong; Alice herself is so exasperated by the illogic that she brings down the house of cards, and wakes from Wonderland to boot. But there are many times and places where the distinction between sentence and verdict has been far less clear.
Wrongdoing in non-Western cultures has often been tackled by rituals that have assumed guilt as much as they have investigated it. Among nineteenth-century Angolans, to take just one example, the fact that a woman was eaten by an alligator while her two companions survived could be regarded as a sure sign of sorcery, and a hearing might be held simply to establish which of the survivors had worked the magic. The pre-modern Western world blurred the distinction between investigation and verdict even more comprehensively. Ordeals and compurgation combined them into a single ritual that operated as much to discover if a wrong had occurred as to establish a suspect’s responsibility for it. The idea of distinguishing the two issues was so alien to Dark Age thinking that lawyers had not even possessed a term to describe the process of weighing up evidence: the only one in use was probatio, or proof. But in the mid 1200s the word triatio entered the legal vocabulary of Christian Europe for the first time. Whereas the Dark Ages had tackled mischief with magic, through pleadings that clashed like mighty spells and rites that unlocked the secret will of God, the Western world had recovered the option of holding an inquiry.
The new faith in human scrutiny would also encourage tremendously significant developments in the field of moral philosophy, and few thinkers were more seminal than a pensive fellow called Anselm, sometime Archbishop of Canterbury. In the 1090s, he set to wondering why God had thought it important to manifest Himself in human form. As his inquiries proceeded, he found himself puzzled how it was that humanity could be absolved for murdering Jesus – for although crucifying the Messiah seemed a conclusively evil thing to do, Jesus himself had asked that his killers be forgiven. Anselm, committed like any good eleventhcentury scholar to the principle that there was a reason for everything, pondered the text until he realized that the answer was staring him in the face. Christ himself had argued from the cross that his killers deserved mercy ‘for they know not what they do’. Although the plea is a reminder that God the Father had regularly exhibited a more draconian stance, the insight set great chains of reasoning rattling through Anselm’s mind. ‘Had they known it, they would never have crucified the Lord’, he mused, before explaining that, ‘A sin knowingly committed and a sin done ignorantly are so different that an evil…may be pardonable when done in ignorance.’
The belief that people deserved condemnation only if they understood what they were doing was not new. Adam and Eve had established the moral relevance of knowledge, and peoples from the Babylonians onwards had taken the view that intentional wrongs were at least sometimes more enormous than accidental ones. Coming at the end of the Dark Ages, Anselm’s distinction between sins deliberate and ignorant was, however, a radical reassertion of the importance of choice. Thinkers around the continent would soon follow his lead, and the consequences would be far-reaching. Theologians would build on it to develop a concept known as the canonical theory of culpability, which held that guilt depended on a sinner’s state of mind. Lawyers would then argue on the same basis that justice demanded not just an inquiry, but one that could establish what a person thought.
All the changes, like Innocent III’s abandonment of fire and water ordeals, were the product of a tide rather than a tsunami, and their impact on Europe’s judicial systems would be correspondingly gradual. Compurgation would linger for several hundred more years as a way of resolving some civil disputes. The belief that God watched over criminal justice would see suspected witches swum in water four centuries after 1215, while trial by battle remained a legal option in England until 1819. The ordeal of the bier, whereby accused murderers touched their supposed victims and faced condemnation if the corpse bled anew, was arguably most tenacious of all. It was last seen in 1869, when two hundred people were paraded past two bodies in Lebanon, Illinois, in the hope that the cadavers – or, perhaps, the killer’s own sense of guilt – would identify the murderer.
The response to Innocent’s ruling would, however, be both profound and permanent. As Chapter 3 will show, judges on the small island of Britain would simply adapt the old oath-taking rituals and make jurors out of conjurors. On the continent the revival of rationalism and Roman law would lead to root-and-branch renewal of the law. Innocent III had already approved a ruthless model for judicial reform, based on God’s activities at Sodom and Gomorrah. The once imponderable power to judge right and wrong was being arrogated on behalf of lawyers, on the assumption that sufficiently rigorous intellectual inquiry would produce both truth and justice. In an age when evidence and intention were becoming increasingly important, those lawyers would formulate techniques capable of examining not only what people had done, but also what they had thought. Defendants had been tormented by conscience at least since the time of Socrates, but the idea that judges too could explore the secrets of the criminal heart represented an unprecedented extension of official power. The Inquisition was dawning.
2 The Inquisition (#ulink_859b1e7e-c7a4-5398-9701-cde845a060bf)
‘My position is becoming more and more difficult.’ ‘You are misinterpreting the facts of the case’, said the priest. ‘The verdict is not so suddenly arrived at, the proceedings only gradually merge into the verdict.’ ‘So that’s how it is’, said K., letting his head sink.
FRANZ KAFKA, The Trial
The disappearance of ordeals created a legal vacuum, but within two decades the papacy that had abandoned them was rushing to fill it. Justice had previously rested on a belief, common to all participants, that the performance of certain rituals would automatically unlock the judgments of God; but the powers to inquire and judge would now be placed firmly in the hands of human officials. In the name of stamping out heresy, the Church also invented ways to explore the minds of those it suspected. At a time when scholars were reasserting a link between the state of those minds and sinfulness, wrongdoers would be made to internalize the reasons for their condemnation and to display in public their obedience to the rules. Communities had expected submission from criminals since the time of Socrates, but willing degradation would now attain a status that it had never previously possessed. The confession was born from the Church’s war on heresy – but lawyers soon fetishized it as a mark of official power, and developed techniques to extract it that would outlast by centuries the threat that they were theoretically intended to meet.
The machinery of repression available to the Church in the early 1200s had been extremely lacklustre. Clerics had been too complacent to hunt down its enemies. Trial by ordeal was too irrational to locate them. And even if a bishop got round to convicting a heretic, the only punishment he could impose was excommunication and denial of Catholic burial, a fate unlikely to disturb the repose of any self-respecting apostate. Innocent III had cleared the way for reform by abolishing ordeals and establishing orders of monks who would report directly to the Holy See, but when he died in 1216 the most fundamental problem – the papacy’s lack of muscle – remained unresolved.
That was about to change. In 1232, Pope Gregory IX persuaded Emperor Frederick II of Germany that as a good Catholic, he should instruct his judges to burn heretics as and when officers of the Church identified them. He simultaneously advised monks at the recently established Dominican friary at Regensburg to get identifying. Gregory’s relationship with Frederick was always precarious, and it collapsed in 1237, when he denounced his erstwhile ally as ‘a Beast…with the feet of a bear, the mouth of a raging lion, and the [limbs] of a leopard’, but by then the dalliance had already borne fruit. And its offspring was the papal Inquisition.
It would be several decades before the system reached maturity, but the template was established within months of Frederick’s agreement with Gregory. Conrad of Marburg, a gaunt and zealous priest who rode about on an ass, had been snooping around the Rhineland on Rome’s behalf for several years, and he now began to send back some alarming reports. Although the only sectarians present in significant numbers were the Waldensians, whose heresy was essentially to trudge around without shoes and preach that clerics would do well to do the same, Conrad claimed to have encountered practices far more troubling. The region was infested with people who celebrated Lucifer as the true creator, he warned. They believed, among other outlandish things, that the Eucharist should not be swallowed but spat into a latrine. Converts were initiated at meetings attended by the Devil himself, who generally assumed the form of a toad, a pale-skinned man, a goose, or an immense black cat with a stiff tail. After kissing his anus, the heretics would extinguish the candles, fumble for each other’s genitals, and embark upon an orgy that ended only with another hellish manifestation, this time of a character with loins as furry as a feline and chest more radiant than the sun.
The claim replicated rumours that had been circulating about religious deviants since Roman times, and most historians agree that the tales of Luciferan worship and sexual free-for-alls bore about as much relation to reality as the man with the furry loins. But whether it was malice or mistake that inspired Conrad to his discoveries, Gregory was appalled – and, for the first time, in a position to take action. He urged his emissary to gather some evidence, and Conrad threw himself into the task with grim enthusiasm.
Travelling from town to town in the company of two sinister sidekicks – a certain Conrad Torso and a character with one arm and one eye known only as Johannes – he was soon finding heretics wherever he looked. As the baleful trio progressed, shaving the heads of suspects who named their accomplices and incinerating those who did not, accusations ricocheted ever higher up the social scale. In 1233, Germany’s bishops and nobles finally realized that if they did not stand together, they would burn separately.
The showdown occurred at Mainz in July, when Conrad of Marburg summonsed Count Henry of Sayn to answer reports that he had been seen riding a giant crab. Sideways motion was, symbolically speaking, a sure sign of heresy and the charge was a grave one; but the city’s clerics and aristocrats stiffened their spines and collectively testified to Henry’s piety. Conrad’s witnesses, sniffing the wind, admitted that they might well have been mistaken about the crab. The inquisitor dropped his case, vowing revenge, but the game was up. As he trotted furiously back to Marburg he was murdered on his ass, and his henchmen only outlasted him by a few months. One-armed Johannes was last seen in Freiburg, oscillating from the end of a lynch mob’s noose, while Conrad Torso, evidently more eager than authoritative, was sliced to ribbons in Strasbourg by the first person he summonsed.
Pope Gregory, infuriated with his clergy, raged that Conrad’s assassination was a ‘thunderclap that had shaken the walls of the Christian sanctuary’. The bishops had, once again, obstructed a papal attempt to get tough on heresy. But their power to do so was about to be drastically curtailed. Conrad’s adventures confirmed that an alliance between agents loyal to the pope and secular judges could potentially work wonders, and although Gregory’s relationship with Germany’s emperor remained fraught, France was nurturing a monarch with whom the papacy would be able to do far better business. Louis IX had been under papal protection since the death of his father in 1227. By the time he reached his majority in 1235, Conrad of Marburg would have gained a redoubtable successor.
St Louis, as he would one day become, was a gangly, smooth-featured and prematurely balding young man, but the callow physique belied a prodigious faith. He delighted in dining with beggars. Few were the lepers whose feet he did not stoop to wash. And notwithstanding the occasional impulse to abandon his throne for a monastic cell, he wielded the sword of righteousness as surely as he loved his fellow man. It was better to disembowel Jews than dispute with them, he proposed, while blasphemers in his realm were condemned to be branded on the lips or garlanded in pig entrails. It is perhaps little surprise that when Gregory suggested, in the early 1230s, that France could do with some Dominican inquisitors, Louis accepted with enthusiasm.
Louis’ eagerness was motivated primarily by piety, but politics also played its part. Forces loyal to the Church had recently won a final military victory in the quarter-century crusade against the Cathars, and the destruction of the Languedoc offered unparalleled opportunities. The heretics, knights, and troubadours of the region had always been a little too lively to be loyal, but the smoking battlefields that remained looked ready for incorporation into France proper. In a deadly pas de deux with Gregory IX, Louis therefore despatched his own judges to join Gregory’s monks in asserting royal control over southern France.
The consequences would be far-reaching. Louis would always be at least as concerned to crack down on official abuses as to impose his will. Canonical law could be no less benign, with scholars finding the basis for a whole catalogue of defendants’ rights in Justinian’s Digest and the Old Testament. But as the first papal inquisitors arrived in southern France in 1234, lighting execution pyres that were soon roaring as far north as Flanders, the structure of customary and canonical law began to buckle. The squads of young monks, faced with resistance and riots, were soon translating theoretical safeguards into practices of military efficiency. The idea that no one should be forced to incriminate himself or herself, in support of which canonists had pointed to the silence that Jesus permitted Judas, became increasingly illusory. The notion that some matters were best judged by God, exemplified by Joseph’s decision not to shame Mary by way of public divorce, similarly eroded. As humility and mercy evaporated, suspects were instead arrested on the strength of anonymous denunciations, denied legal assistance, and made to state on oath what they thought might have been alleged against them. Stings and bugging operations were used, with agents provocateurs encouraging malcontents to share their thoughts while hidden scribes jotted down every word. The powers claimed were as hygienic as they were punitive. Heresy was conventionally regarded as a disease, and just as the Book of Leviticus had once prescribed the destruction of buildings that harboured pestilence, the houses in which heretics had met were soon being demolished as a matter of course.
The effect was to legalize terror, and a whiff of the fear that swept the Languedoc still emanates from a story recounted about Raymond de Fauga, a Dominican appointed to the bishopric of Toulouse in August 1234. Told that the dying matriarch of a leading Cathar family was deliriously calling for a priest to console her, he rose from his lunch and marched to her house. Shocked relatives were pushed aside as he strode to her deathbed, where the feeble woman obliviously recited her beliefs and offered the traditional Cathar prayer that her life come to a good end. On de Fauga’s invitation, she then confirmed her creed – whereupon he rose to his feet, declared her an impenitent heretic and sentenced her to death. She was lashed to her bed, which was carried to a meadow outside the city gates and set ablaze. The Dominican chronicler who recorded the episode – with pride – observed that de Fauga and his companions then returned to their refectory and polished off their interrupted lunch ‘with rejoicing’.
By the 1240s, inquisitors had reconsolidated Catholic dominance in the cities of the Languedoc, and as their successors spread across the countryside of southern France and northern Italy, Europe’s legal tradition began to undergo permanent change. In 1252, Pope Innocent IV published a bull ‘On Extirpation’ (Ad extirpanda), which authorized the use of torture against ordinary citizens – a practice permitted under Rome’s Emperor Justinian, but seen only exceptionally among barbarian tribes in the seven or so centuries subsequent. A lingering sense that the Church ought not to be in the business of bloodshed led Innocent to stipulate that inquisitors should subcontract interrogations to secular authorities, and major haemorrhages, amputations, and death were to be avoided – but the squeamishness would not last. Over the next decade, papal inquisitors were authorized to conduct their own questioning, and to absolve each other if, in their zeal, it generated too much mess. Their unaccountability increased with their discretion, and by 1262 they were almost literally a power unto themselves – capable even of reversing a bishop’s sentence of excommunication if God’s work so required.
Secrecy simultaneously entered the trial process for the first time. Whereas Roman law, ordeals, compurgation and canonical law had all regarded openness as essential to justice, the first legal manual for Languedoc’s papal inquisitors, written in 1248, instructed them to ignore the old rule that witnesses’ names be disclosed. Investigators would instead issue blanket summonses to every male over fourteen and female over twelve in a region, who presented themselves for questioning in public, but were questioned in private. As though to compensate for the change, judgment was simultaneously transformed into a magnificent ceremony, usually staged in the square of the largest regional town, at which church officials would broadcast the verdicts reached and penances imposed. Those who had attended a Cathar service might be sent on a pilgrimage, for example, or instructed to sew a large yellow cross onto a pair of overalls and wear it for the rest of their lives. More serious offenders would be told to present themselves to their priest with willow switch in hand and ask for a public flogging. Particularly incorrigible hotheads and proselytizers might be sent to close confinement for a decade or two.
At the very end of the list would be those who refused to admit their errors – who were, in the scatological language favoured by the Inquisition, to be ‘cut off like an infected limb’ because they had ‘returned to their heresy, like a dog to its vomit’. The rules that prevented clerics from spilling blood would, even in the war on heresy, have to be observed. The bishop or inquisitor would therefore ‘relax’ impenitents into the hands of secular courts and ‘affectionately request’ the court to be ‘moderate’ in its sentence. The double-talk was as psychotic as it sounds. Moderation involved chaining the convicts to stakes while piling logs up to their chins, burning the bodies for hours, and finally smashing the carbonized skulls and torsos with a poker. And although zealous papal inquisitors would, for long centuries, shelter behind the fiction that the Church longed to re-embrace its naughty children while someone else insisted on killing them, they were swift to ensure that no one misunderstood the meaning of relaxation. Anyone who assisted excommunicated heretics – by, for example, arguing that they were innocent – became personally liable to condemnation. According to a compilation of German laws written in the 1230s, any judge who was too moderate towards a relaxed heretic was liable to ‘be judged…as he himself should have judged’ – or, less euphemistically, to be burned to death.
In view of the Church’s institutional psychopathy, it is unsurprising that popular myth, bolstered by several centuries of anti-Catholic propaganda, now recalls the Inquisition as a blood-drenched threshing machine. Uneven record keeping and Vatican secrecy mean that no reliable estimate of its death toll is actually possible, but the total number of certain executions in fact falls no higher than the low thousands. Hundreds of thousands certainly passed through its mill, but it was more insidious than murderous, designed to recover sheep rather than to annihilate them. Anyone who publicly repudiated heresy was given at least one opportunity to return to the fold. Imprisonment was the preferred penalty even for the recalcitrant. At the same time, although it killed relatively few, it released even fewer. Indeed, it barely comprehended the concept of an acquittal. To be suspected of heresy was heretical in itself, and relapse was a capital offence, with the result that arrest was tantamount to a suspended death sentence. Release invariably required a display of repentance, whether the wearing of a cross, the taking of a beating, or departure on an enforced pilgrimage. Even those condemned to death were expected to show their submission. After being compelled to walk to the stake or gallows in a white shift, clutching a candle of penitence, they were offered the last rites – one final opportunity to submit to the Church in whose name they were being killed.
The Inquisition succeeded in the short term. Orthodoxy was stamped back onto the towns of the Languedoc, and rural communities slowly gave up their heretical ways. Die-hard Cathars melted away into the towns of Germany and the mountains of the Savoy, leaving behind only the crenellated ruins that still litter the region. The repression arguably generated considerably more heresy than it ever destroyed, for the refugees maintained a tradition of dissent that would eventually fuel the Protestant Reformation; but the effect of their departure was to defuse the crisis that had brought the Inquisition into being.
Its techniques would not come to an end however. A brood of baby inquisitions would now hatch from its belly as the kings and nobles of Europe realized just how useful the machinery devised by Pope Gregory IX and his successors could be. The Spanish Inquisition has entered history as its truest successor, thanks to the cruelty of its fifteenth-century anti-Jewish persecutions and its more recent activities on Monty Python’s Flying Circus; but it was neither the first nor the most influential of the offspring. It was instead in the national courts of France and then Germany that the discomforting procedures pioneered by men like Conrad of Marburg would take deepest root.
When King Louis IX agreed with Gregory IX to import Dominican inquisitors into his realm, it was not just the battle against heresy that was transformed. At a time when ordeals had just been abandoned, his own officials needed a new way of deciding cases, and they were soon taking great leaves from the books of the Dominican inquisitors. It was not long before witnesses and defendants were forced to answer questions on oath. In 1254, two years after Pope Innocent IV had authorized the use of torture, Louis followed suit in that regard as well. Like the papal tribunals, his courts would always try to strike a happy medium between maximal pain and minimal bloodshed. Water torture, sleep deprivation, and prolonged isolation were always the most popular methods. Some courts preferred to insert hot eggs under suspects’ armpits. The strappado, a rope-and-pulley apparatus used to raise and drop a suspect from the roof, would become ubiquitous.
But all the cross-fertilization had a paradoxical effect. As lessons derived from the papal Inquisition fortified France’s royal courts the kingdom was becoming one of the most organized states in Europe, but the same process made those courts increasingly likely to tread on papal toes. Conflicts between kings and popes were nothing new, but at a time when national loyalties were strengthening, the personal rivalry was escalating into a struggle between Church and State. Thirteenth-century popes fought dirty – most spectacularly in 1268, when papal scheming resulted in the beheading of Conradin Hohenstaufen, the 15-year-old heir to the German Empire, whose death condemned Germany to five centuries of disunity – but in France the papacy would now meet its match. Its nemesis would be Louis IX’s grandson, Philip the Fair.
Philip, just seventeen when he assumed the French throne in 1285, dreamed as avidly as his grandfather of eradicating the infidel. Like Louis, he too had visions of a Christian realm that would stretch from Paris to Jerusalem. But a deep temperamental difference distinguished the two men. Whereas Louis had placed both body and country at the service of the pope, Philip saw the Holy See as an obstacle to his ambitions rather than the inspiration for them. It was an attitude that always boded ill for relations between Paris and Rome, and at the end of 1294, the route to Christian harmony became rocky indeed. For the king who would be pope found himself confronted by a pope who would be king – Pope Boniface VIII.
Boniface was a worldly man, as pontiffs go. His fondness for the ladies was such that he married one and fathered another; while his affection for the men was so notorious that rumours of pederasty would follow him far beyond the grave. He assumed the papacy only after encouraging his predecessor, Celestine V, to resign – whereupon he installed the 81-year-old hermit, who had not wanted the job in the first place, into an oubliette to die. He was never going to take kindly to a whippersnapper like Philip, and the tensions began rising almost immediately. The French king, whose realm constantly teetered on the brink of bankruptcy, had begun to extort money from the country’s monasteries in order to finance a war with England, and in 1296 Boniface ordained that monarchs who taxed clerics and clerics who paid up were ipso facto excommunicated. The bull was meant as a shot across the bows and was reversed a year and a half later, but Boniface followed up by elevating Louis IX into St Louis, canonizing a French king for the first and last time in Christian history. Recognition of the grandfather was no honour to the grandson – and it was not meant to be.
Battle was about to begin – and the weapons of choice would be legal ones. Canonical law of the late thirteenth century was still Church property, its mysteries guarded by monks and arbitrated by bishops, and Boniface was regarded by many, not least himself, as the finest jurist of the age. Allegiances across Europe were switching from papacy to nation, however, and under the patronage of Philip, France’s lawyers were emerging as a distinct and powerful social class. The effect was that whereas Louis had borrowed the legal tools developed by the Church, Philip deployed them – and his target was the Holy See itself.
Skirmishes began when he sent Guillaume de Nogaret, the most trusted of all his legists, to attend a jubilee that Boniface held at Rome in 1300. Nogaret, a man of humble and possibly heretical origins who had several anti-papal chips on his shoulder, would prove himself a worthy champion. According to his own account, he took Boniface aside as soon as he arrived and warned him, sotto voce, that his simony and extortion – along, presumably, with several more or less unmentionable vices – had to stop for the sake of the Church’s good name. An outraged Boniface had challenged Nogaret to repeat his words before witnesses which, on the Frenchman’s own proud recollection, he promptly did. Philip himself increased tensions in the following year. Eager to reassert French control over the Languedoc, he had one of its key bishops charged with sexual and spiritual offences – and to compound the insult, informed Boniface that he had been driven to act because the cleric had defamed the pontiff by calling him Satan incarnate. Boniface returned fire with a bull in 1302, in which he ‘declare[d], announce[d] and define[d]’ that any ‘human creature’ who refused to submit to papal authority could expect to spend all eternity in hell. Lest there remain doubt about which human creature he meant, he then let it be known that his French ambassador was instructed to excommunicate the French king.
The thunder hung potential throughout the summer of 1303. Aware that a final conflict might be looming, Philip’s lawyers drew up an indictment against Boniface in June, packed with every charge that their hostile, fertile minds could generate – from diabolism and sodomy to materialism and the neglect of fasts. Boniface thereupon drafted a formal document of excommunication. If published, it would have released Catholics everywhere to perpetrate treason and war on the French monarch at their pleasure. But against the power to damn a man till the crack of doom, Philip possessed a weapon that was hardly less potent: Guillaume de Nogaret.
Boniface’s bull was due to be nailed to the doors of the cathedral at Anagni, a small hill town where he maintained a sumptuous palace, on 8 September. It was early on the morning of the seventh that Nogaret arrived. He was carrying his indictment – and was accompanied by 1300 men. As bells rang and dogs barked, the invaders stormed through the narrow alleys, but it was not until dusk that the heavy oak doors of Boniface’s inner chamber were finally broken down. A certain degree of confusion has come to surround the events that immediately followed. Some say that Boniface was found atop his throne in vestment, crucifix and triple-tiered tiara, defiant and ready to die for the honour of his office. Others suggest he was trembling like a human jelly. All agree, however, that Nogaret eventually strode through the splintered door to inform him that, having failed to mend his sodomitic ways, he was required to attend at Lyons for trial.
Boniface in fact survived to be escorted by his allies back to Rome, but the shock was all too much. The man who had once asserted supremacy over the entire human race shrank into a wraith and lived for just five more weeks. He died in his sleep, crumpled like a foetus with both fists in his mouth. Pursuant to legal theories that will be considered more closely in Chapter 5, Philip thereupon campaigned to have his body put on trial and burned at the stake.
The conflict exemplified by the struggle between Philip and Boniface would recur across western Europe. As inquisitorial methods were adopted by secular rulers, those rulers seized control of the system from its creators. Christianity and canonical law would continue to influence continental legal systems until the late eighteenth century, but kings and princes would already have gained the upper hand over papal inquisitors by the fifteenth. The fact that legal procedures were secularized would not, however, make them any more humane. Just as monks and canonists had redefined the law to pursue the Church’s war in the early 1200s, secular lawyers would reinvent it on behalf of their masters to justify use of the rack, the thumbscrew, and the strappado for centuries.
The question of evidence would generate some of the most inventive theories of all. In an era of trials by ordeal and compurgation there had been no need to consider how something should be proved, since the defining event – a miracle or the swearing of sufficient oaths – either took place or it did not. The rediscovery of Justinian’s Digest in the late eleventh century had, however, shown Europe’s lawyers that the Romans had differentiated between proofs and the verdict, and as witnesses entered the scene following the abolition of ordeals, the status of their testimony began to trouble the canonists. The primary problem was that, despite the rationalist aspirations of the age, no one possessed any systematic theory of how contradictory statements were to be weighed up. The Digest’s various recommendations – that judges pay heed to a witness’s social standing and manner of speech, for example – did not take matters very far. When lawyers then turned to chapters 17 and 19 of the Book of Deuteronomy – which required allegations to be proved by two respectable eyewitnesses – a new problem arose. Since the Bible said nothing about how to differentiate truth from lies, judges interpreted the two-witness rule literally. If two people swore to a fact, it was proved – conclusively. The injustice of that was apparent to many people even in the formality-obsessed thirteenth century, and dissatisfaction increased as inquisitors tried applying the rules to heresy. Eyewitnesses to disbelief were necessarily hard to find, and the most threatening heretics were in any event those who kept themselves to themselves. Proving their thought-crimes would require a theory more imaginative than one that depended on eyewitnesses.
The answer to the riddle would be the confession. Admissions have since become so routine a feature of Western criminal justice that it is hard to appreciate just how radical a shift took place during the mid thirteenth century, but the nature of that shift is well illustrated by Louis IX’s laws for southern France. Aware of the deficiencies of the two-witness rule, the king had ordered his judges never to convict on such evidence unless it was backed up by a confession. He was, however, as perturbed by wrongful acquittals as wrongful convictions – and he simultaneously allowed those judges to torture defendants who had aroused suspicion but refused to provide the confession that would be needed to convict them. The law that claimed to protect against unreliable convictions consequently became their primary cause. Within decades the confession was being promoted from a subordinate form of evidence to the regina probationum – ‘the queen of proofs’ – and self-condemnation would soon come to be revered as an almost immaculate guarantor of guilt.
The concept of the regina probationum owed nothing but its Latin to Roman law. It was also alien to the Old Testament – so much so that Maimonides, the foremost Talmudic scholar of the medieval world, declared conviction on the basis of a bare confession to be contrary to divine law. Confessions came to be exalted not because of ancient traditions, but because of seismic changes: a new confidence among political rulers that they could know their subjects’ secrets, and a new morality that was beginning to measure people’s culpability according to the words they uttered.
The tectonic movement occurred on a timescale that is better measured in generations than moments; but if a single occurrence could be identified as pivotal, it would be the Fourth Lateran Council of 1215. In the same set of canons that brought ordeals to an end, Pope Innocent III had commanded that all Catholics annually confess their sins on oath to a priest. The cleric was simultaneously empowered to forgive those who observed the obligation, while those who failed to do so were made liable to excommunication and unhallowed burial. It was a major change. Church thinkers had long agreed that salvation demanded contrition and many had even claimed for the Church a power to forgive sin. No one, however, had ever presumed to suggest that Christians had to verbalize their remorse to be saved – let alone that they had to do so in the presence of a priest.
Innocent’s innovation inspired considerable resistance among ordinary Catholics, and over the next few decades concerted efforts were made to persuade the flock that confession was in their interests. Gregory IX formally advised all doctors to recommend it to their patients, and chroniclers were soon extolling the new sacrament’s benefits. The most influential was a Cistercian monk called Caesarius of Heisterbach whose Dialogue of Miracles, written in the 1220s, would inform popular Christianity for centuries. Four of its twelve chapters were devoted to confessions, and they suggested that their power was prodigious indeed. A popular legend doing the rounds told how St Norbert had exorcized someone of a demon that insisted on revealing the adulteries of everyone around it, but Caesarius now turned the story on its head: he knew of one that had buttoned up simply because the adulterer concerned had confessed. Another fiend had positively lied to protect a girl’s reputation for chastity, so impressed was it by her decision to divulge her sexual history to a priest. Caesarius told of confessions so timely that they had saved vessels from sinking and rendered murderers fireproof even as the flames of their execution pyres were lapping around them. One ancient demon of which he had heard had been so awestruck by the aura of salvation emanating from the confession box that it had insisted on admitting every misdemeanour it had committed since tumbling out of heaven alongside Lucifer. Silence or equivocation, on the other hand, invariably attracted the attentions of less benign apparitions and might even inspire visits from the undead. The message was clear. Blabbing worked wonders, but verbal retention could end in disaster.
There are weighty philosophical arguments to support the belief that expressing responsibilities might lessen them. The insistence on verbalization has always risked robbing speech of its meaning however, and thirteenth-century jurists were soon treating confessions as symbols of guilt rather than methods of establishing facts. The canonical principle that defendants should not be compelled to condemn themselves was watered down to mean only that a forced confession had to be recited in court. It meanwhile became established that torture could be repeated three times. One Dominican inquisitor called Nicolas Eymeric argued in the late fourteenth century that each of the three sessions could itself be ‘continued’ indefinitely. By 1705, one lawyer would be basing his critique of torture on the magnificently metaphysical grounds that justice, like nature, abhorred infinity. Those who managed, despite everything, to hold out, were treated not as innocents but as culprits who had cheated justice, and were typically sent into exile or deprived of an ear on the basis that they deserved punishment for falling under suspicion in the first place. Jean Bouteiller, a jurist of the late 1300s, expressed the prevailing attitude when he advised that a suspect should only ever be released ‘conditionally’ because otherwise ‘it would seem that he had been held prisoner without cause’. His colleagues were evidently of a similar mind. The country’s first trial records, which detail more than a hundred cases from Paris between 1389 and 1392, show an overwhelming majority of defendants confessing and not a single one winning an outright acquittal.
Few trials better capture the shifting meaning of spoken guilt in early modern Europe than the 1440 prosecution of Gilles de Rais. Gilles, born in 1404 as heir to the fortune of three of the wealthiest families of France, enjoyed a youth that seemed charmed indeed for the troubled fifteenth century. At a time when his country was convulsed by a seemingly perpetual war and its nobility torn between those who supported the territorial claims of the English monarchy and the aspirations of the Dauphin, Charles VII, he gambled for high stakes – and won. In May 1429, fighting shoulder to shoulder alongside Joan of Arc, he helped achieve the victory at Orléans that turned the tide of the Hundred Years War. The triumph allowed the French pretender to be crowned at Reims Cathedral, the site of every previous coronation in French history, and his gratitude knew no bounds. Gilles was invited to carry the amphora of anointing oil – no insignificant honour, given that it had supposedly descended to earth on the wings of a heavenly dove – and Charles VII, weeping copiously, concluded the day by appointing him a Marshal of France. At the age of 24, Gilles had reached the top of the tree. The perennial curse of the early achiever is, of course, that all paths from the treetop go down. Even Gilles could hardly have guessed how far he would fall.
Whatever the passions that drove the young hero, they were soon taking him somewhere far from the battlefield. Gilles increasingly neglected his martial duties in favour of the priesthood, and with the war’s end in 1435 he endowed a chapel at his Brittany castle of Machecoul – complete with choir, portable organ, and a chapter of clerics outfitted in fur-lined silk and scarlet – and decided to reenact his most magnificent triumph as theatre in Orléans. It was a glittering train of some two hundred choristers, jugglers, pipers, fire-eaters, and astrologers that now snaked across the countryside – but a shadow was sweeping alongside. For as it moved, children vanished in its wake. Some were last seen taking the hand of rosy-cheeked crones. Others climbed onto strangers’ horses, never to be seen again. And Gilles was enjoying the road show so much that he turned it into a rolling tour.
Over the next few years, the darkness fell deepest around the gloomy towers and brackish moats of Machecoul, and never more so than in 1437, when two small skeletons were found inside the castle. Rumours were soon rife. Some claimed that Gilles was kidnapping youths to sell to the English. Others whispered that he was writing a book of spells with human blood. A few may even have begun to wonder why he had chosen to dedicate his chapel to the Holy Innocents – the infants slaughtered in their cradles by King Herod.
Such matters might ordinarily have come to nothing. Scurrilous tittletattle about the misfortunes of a few under-age peasants was never likely to touch the reputation of a nobleman in fifteenth-century France. The talk of diabolism was a little more risky, coming at a time when Europe’s witch-hunts were warming up, but invocation of demons still remained a popular hobby among French aristocrats. A discreet lord would have had nothing to fear. But discretion had never been Gilles’s strong suit – and incontinence would prove to be his downfall.
As he had traveled, staging miracle plays and mysteries and keeping his choirboys supplied with chalices, censers and pyxes, he had churned his way through the fortune that three bloodlines had taken centuries to accumulate. And in May 1440, hubris finally met nemesis. Having recently sold one of his last properties, a fortress at St-Étienne-de-Mermorte, to a certain Geoffrey le Ferron, he decided that he wanted it back. At the head of a posse, he stormed into its church brandishing a double-headed poleaxe and forced its priest – who was also le Ferron’s brother – to open the castle gates, before tossing him into its dungeon. It is hard to imagine an act of gratuitous violence that would have been better calculated to bring Gilles’s impunity to an end. Invasion of a church violated ancient privileges of the Bishop of Nantes. Geoffrey le Ferron was no mere castellan but treasurer to the Duke of Brittany. The duke was the only man below the French king to whom Gilles owed fealty, and was thus entitled to confiscate what remained of his vassal’s wealth if he was convicted of a felony. Gilles had finally found a mark to overstep.
By the early fifteenth century, the papal–national conflict had been unequivocally resolved in favour of secular rulers in France, and the bishopric of Nantes would now work loyally alongside the Duke of Brittany’s officers. Proceedings were launched in the episcopal court, and covert inquiries produced a secret report in late July. One and a half months later, ducal officers arrested Gilles along with two servants and two priests. Four days after that, on 19 September 1440, he was escorted into the great hall of Nantes Castle to be told that he faced charges of heresy. Gilles had doubtless come to terms with the fact that abducting a priest at poleaxe-point was going to require some penance, but when he was brought back to court almost three weeks later it became clear that the term ‘heresy’ covered a multitude of sins. Alongside sundry acts of impiety, apostasy, and sacrilege, the indictment alleged that he had made pacts with demons, and that he had sodomized and murdered some 140 children.
Gilles seems to have been unable quite to believe that the court was presuming to judge him for such trifles. He haughtily insisted on appealing, and when the judges told him that the request was frivolous, and ought to have been in writing anyway, he fell into a monstrous sulk. Even when the prosecutor swore four times to the truth of his indictment, he refused to speak. Five days later, the displeasure had hardened. Spitting invective at the bench, Gilles condemned his judges as ‘simoniacs and ribalds’ and announced that he would rather hang from a rope than plead to their charges. In the face of such defiance, they deployed the most powerful sanction at their disposal. They excommunicated him.
The judges knew their quarry. When Gilles reappeared two days later he was in tears, begging forgiveness for having questioned their right to try him and pleading for readmission to the Church. The clerics duly re-embraced him to the Church’s bosom, but made sure simultaneously to have him watch his servants and priests being sworn, in preparation for secret interrogations that were to take place over the next few days. The pressures on Gilles were mounting; but when the indictment was read aloud, he seemed strangely disengaged. He admitted borrowing a book that explained how demons might be persuaded to transmute base metals into gold, but made a point of insisting that he had returned it to its owner. He had employed several alchemists to freeze quicksilver, he accepted, but he was anxious to assert that he had neither invoked evil spirits nor made sacrifices to them. Of lost children, he spoke not a word.
The members of Gilles’s household were then interviewed – very probably, under torture – and, five days later, their statements were read to him. All described acts of diabolism and murder in chilling detail, and Gilles declined to challenge any of the evidence – but the court remained unsatisfied. It duly ordered that he be interrogated on the rack ‘in order to shed light on and more thoroughly scrutinize the truth’. Gilles, allowed a night to consider his position, decided that that would not be necessary. On the following afternoon, he made a full confession in his cell to four judges and the prosecutor, and was made to repeat it a day later in a packed courtroom. It was an extraordinary performance.
He began by asking that his words be published not just in Latin but also in French, in order that as many people as possible could learn from his mistakes. He implored his listeners to raise their children with good manners and virtuous habits, because he had been undone by an unbridled childhood. And he then confessed to the abduction and murder of ‘so many children that he could not determine with certitude the number’ in terms that, even six centuries distant, retain their power to appal. Alongside his servants and other companions, he had throttled his victims and hanged them from hooks, sodomized them and ‘ejaculated spermatic seed in the most culpable fashion on [their] bellies…as much after their deaths as during it’. He had stabbed and battered them, decapitating some, and while they were in their last throes, he had often ‘sat on their bellies and…laughed at them’. Once dead, he had ‘embraced them…contemplating those who had the most beautiful heads and members’, and had then torn open their bodies to ‘[delight] at the sight of their internal organs’.
Having dealt with the question of dead children, Gilles turned to diabolism – a subject on which he seems to have spent about four times as long – and admitted that he had often hired magicians to invoke demons. All were evidently con artists, warning him off at crucial moments and sometimes beating themselves up in locked rooms to prove the risks they were running, but although their dishonesty had eluded Gilles, his participation had been far from passive. He had once used blood from his little finger to write to a demon, he recalled. On another occasion, he had given a magician the hand, heart, and eyes of a young boy in a jar.
Gilles concluded with a plea to all fathers present not to tolerate sloth or fine dressing in their children, and a warning that his crimes were born out of an insatiable appetite for delicacies and mulled wine. By now in tears, there was just one other thing that he wanted to share. Temptation had been strewn across the path of his life, he admitted. It was only by virtue of his steadfast affection for the Church that he had lost neither body nor soul to the Devil.
Any confession made after the threat of torture in response to accusations by imprisoned accomplices has to be suspect, but Gilles’s words – oblivious as a psychopath’s and naive as a child’s – ring so true that they are almost impossible to disbelieve. The portrait draws from life rather than the formulaic fantasies of inquisitors. It does not depict an omnipotent diabolist, but a gullible fool. And the clinical descriptions of murder are not the words of someone who imagined what crime might be like. They are the recollections of a man who had watched children die.
Three days later he was convicted, excommunicated again, and – after another tearful display of genuflecting remorse – formally readmitted to the Church for a second time. Later that morning, he went to the secular court in order to receive his death sentence, and delivered a second public confession at the request of Pierre de l’Hôpital, the senior judge. De l’Hôpital advised him that his shame in this world would precisely alleviate the punishment he was owed in the next, and although there is little indication that Gilles was anticipating much divine retribution, de l’Hôpital was impressed by his contrition. So much so, indeed, that he granted him the greatest boon he could have extended. After pronouncing that Gilles was to be hanged and then burned, he specified that his corpse should be merely ‘embraced’ by the flames – in order that it could then be interred in Gilles’s church of choice.
Gilles, given one last night to make his peace with God, offered a final display of atonement, fifteenth-century style, at the gallows the next morning. Barefoot and clad in white, he exhorted the two servants who had helped him to throttle, disembowel, and sodomize unnumbered children to be strong in the face of temptation. He bade them au revoir instead of adieu, assuring them that their souls would be reunited at the moment of death, because no sin was unforgivable ‘so long as the sinner felt profound regret and great contrition of heart’. All were then hanged and the servants’ bodies, in keeping with their humble stations, were reduced to ashes. Gilles’s corpse, lightly singed, was borne away by assorted ecclesiastics and aristocrats for its honourable burial at Nantes Cathedral.
Gilles’s confidence might strike modern readers as bizarre, repulsive, or even blasphemous, but the scribes and judges who heard him were not just satisfied, but touched, by the piety they detected. A conventional explanation nowadays for their attitude would be that, just as the era was typified by a concern that sinners display signs of their shame, the inquisitorial system regarded the utterance of regret rather than inner remorse as the way to expiate guilt. That assertion does not, however, go very far. It was well-established Catholic doctrine by the fifteenth century that confessions were invalid unless accompanied by contrition, and the trial record itself indicates that at least some of Gilles’s judges wanted insights as well as words. While the witness statements were being taken, he was asked twice if he wanted to ‘justify’ his actions, or set out his ‘motives’, and at the time of Gilles’s first admissions in his prison cell, a particularly telling exchange took place. Pierre de l’Hôpital, Nantes’s senior secular judge, asked him at one point to say who had incited and taught him his crimes. Inquisitors routinely asked the question in the hope of identifying accomplices, but de l’Hôpital was after more than names. When Gilles replied that he had been ‘following his own feelings, solely for his pleasure and carnal delight’, the judge did not only express surprise, but also pressed on. He wanted to know ‘from what motives, with what intent, and to what ends’ the murders and sexual abuse had occurred. An explanation, he urged, would allow Gilles ‘to disburden his conscience, which most likely was accusing him’. The remark inspired indignation. ‘Alas!’ snapped the nobleman. ‘You are tormenting yourself, and me as well.’ The judge fired back that he was not tormenting himself, but wanted to know the ‘absolute truth’, whereupon Gilles brought the exchange to an abrupt end with a bare assurance that, ‘Truly, there was no other cause, no other end nor intention.’ Even de l’Hôpital was ultimately sufficiently impressed to grant his prisoner the privilege of a mere toasting, but he seems to have been struggling with ideas that are now as common as they were then inchoate: that defendants can reliably reveal their motivations, and that guilt should be measured by their willingness to do so.
The exchange also exemplifies another feature of the modern trial: the way in which it attempts to reconcile those being judged with those doing the judging, and the extent to which that attempt is so often doomed. No matter how much a criminal may want to explain, a court long to understand, and a grieving relative hope for resolution, the gap in most serious cases is all but unbridgeable. The most obvious reason is that no crime can be undone, but another is that no explanation can ever adequately pin down why one person breaks the rules and another does not. The excuses most commonly heard today – whether social deprivation, mental retardation, or pre-menstrual tension – are inherently no more plausible than Gilles’s claim that his murders were the fault of Satan, a wild childhood, and a predilection for mulled wine. Making the leap of imagination to empathize with a criminal is of course easy if one sympathizes with the crime concerned, but the mentality of someone who, say, dedicated a chapel to martyred children while slaughtering real ones is, for most people, about as unreachable as another mind can be. In such cases, the assessment that resonates truest to modern ears is one that Gilles gave long before his trial. He told a servant that he had been born under a star such that ‘nobody could know or understand the anomalies or illicit acts of which [I am] guilty’. And it explains nothing at all.
The concern to hear confessions was not the only feature of the Church’s battle against heresy that found permanent expression in the secular legal system of France. The country’s courts also became increasingly secret, just as the tribunals of the papal inquisitors had in the early thirteenth century. Inquisitorial judges opened their doors only when they were ready to present to the public the spectacle of a confessing defendant or, as happened rather more rarely, the mercy of the sovereign. By the close of the fifteenth century, they were interviewing witnesses in the absence of everyone but their clerks. Defendants meanwhile languished in custody except when it became necessary to confront them with their accusers or torture them; and defence lawyers, always rare, were formally excluded in 1539 from most stages of a trial, and absolutely barred in all capital cases after 1670.
Excluding the unlettered and the unwashed undoubtedly appealed to many lawyers then for the same reasons that secrecy still does to many people with power; but there was one notable critic. A judge from Angers called Pierre Ayrault, whose writings would influence generations of French lawyers, wrote a long work specifically on the topic in 1588, in which he complained that French justice had become like ‘a sacred mystery that is communicated only to the priest’. Its secrecy, which had been adopted out of ‘fear of the uproar, shouting and cheering that people ordinarily indulge in’, was a recipe for incompetence and error. Statements obtained during closed interrogations reflected the preconceptions of the legal official taking them rather than the meaning of the person being interviewed. Public trials, on the other hand, would serve to display the law at its most majestic. They would also make it more likely that a judge’s rulings were honest and reasoned.
The critique, developed at a time when political concepts like freedom of information and checks and balances still lay some distance in the future, was a perceptive one. The inquisitorial process, by concealing its officials from scrutiny, was inherently prone to corruption. The pernicious nature of the secrecy was, however, greater than Ayrault himself knew, for it could cloud the vision of even its greatest critic.
In August 1598, he was called upon to try a dishevelled and longhaired beggar in his mid-thirties called Jacques Roulet. Roulet had been handed into custody by one Symphorien Damon, whose statement set out how he had come to be arrested. Damon’s suspicions had been aroused when he saw the man lying on his stomach in a field for, upon being challenged, Roulet had stared at him malevolently and run away. He had seen him again shortly thereafter, alongside the mutilated body of a young boy and in the custody of four villagers. Everything else that Damon reported came from those four men; and if they ever testified, their evidence has been lost. He recounted how the peasants (one of whom was the dead child’s father) claimed to have chanced upon the body as it was being eaten by two wolves, and then to have spotted Roulet as they were chasing the beasts away. The coincidence had struck them as sinister, and their hunch was soon confirmed. Asked what he was doing, the beggar had said, ‘Not much’, but when they demanded that he reveal who had eaten the child, he had apparently confessed that he, his father, and his cousin had all been responsible. They had been wolves at the time. According to Damon, Roulet had even had long nails and bloody hands when arrested.
Attitudes towards lycanthropy in the late 1590s were in a state of flux. Although Christian scholars had insisted for centuries that werewolves were no more than an optical illusion – essentially because only God could turn humans into ravenous beasts and He had better things to do – the orthodoxy was under pressure. Lawyers, as usual, were at the forefront of the debate. The most eminent jurist in all France, Jean Bodin, had just written a witchcraft manual in which he argued that Satan did in fact enjoy the power to transform people into wolves. There is little reason to think that Ayrault subscribed to Bodin’s views, which were controversial even among his fellow demonologists, but the judge from Angers had a belief in the value of self-condemnation that was profound. In words that would be cited by French lawyers for the next two centuries, he wrote – in the same work that attacked his country’s legal secrecy – that the ultimate goal of criminal law was to ‘instil and engrave its fundamental principles on people’s hearts’. It was ‘not enough that wrongdoers be justly punished’ he insisted. ‘They must if possible judge and condemn themselves.’ And although he elsewhere warned that confessions could be false, he now put that credo into practice.
Ayrault began by asking Roulet to tell him what he had been accused of – a traditional if sneaky opening gambit among inquisitors – and Roulet replied that people thought him to be a villain. Ayrault specified that he wanted to know what he had been accused of at the time of his arrest, whereupon the beggar told him that he had committed an offence against God and that his parents had given him an ointment. When Ayrault hopefully asked if the potion turned him into a wolf Roulet denied it, but further prodding inspired him to admit that he had killed and eaten a child. He then confessed that he had, after all, been a wolf. Questioned in detail about his appearance at the time, he stated that his face and hands had been bloody, that he had had a wolf’s paws but a human head, and that he had attacked the boy with his teeth. Ayrault had heard enough. Whatever his attitude towards lycanthropy might have been, he certainly believed in murder. And having heard Roulet’s admissions, he now condemned him to death.
Records of the case give no indication why the sentence was not immediately carried out, but they show that the Paris court of appeal quashed the sentence of death three months later. Roulet was more foolish than evil, declared the parlement, and the best way to deal with him was to give him compulsory religious instruction in an asylum for two years. The basis for its decision is not set down, but any sixteenth-century court would have been even less likely than its modern counterpart to reprieve a self-confessed murderous cannibal unless absolutely sure of his innocence. Whether the beggar had been framed or simply fell victim to superstition, Ayrault had evidently got it wrong. He saw the risks of secrecy and untested evidence more clearly than anyone else in early modern France, but alone in his court, away from public scrutiny, his belief that prisoners should ‘judge and condemn themselves’ had led him to encourage a man’s delusions – and then to conclude that they were true.
The progress of inquisitorial procedures through German-speaking central Europe was more uneven than in France, but they would become just as dominant. The execution of the heir to the Hohenstaufen dynasty in 1268
(#litres_trial_promo) saw the region dissolve into a collection of several hundred more or less independent towns and principalities however, and older rituals lingered in many areas long after they had disappeared in others. Some jurisdictions required, for example, that a murder victim’s corpse be borne into court by chanting relatives and assume formal responsibility for prosecuting its killers. A variation on the same theme saw the deceased’s hand severed and given to the defendant who, clad in a loincloth, would have to hold it and assert innocence three times. If the judge detected sufficient signs of discomfort, in either the defendant or the hand, guilt would be established.
Judgment in Germany also retained some notably eccentric features. Judges took their seats clutching unsheathed swords and, after proceedings had been called to order three times by a bailiff, the defendant would recite a confession or request an acquittal. It made no difference which. The judges were formally required to have already decided their verdict, and they would follow up the plea by unfurling and reciting a previously prepared decision. If they had elected to convict, the senior of them would snap his wand of office, toss it to his feet, and pronounce the condemned person’s doom. ‘Your life is over,’ he would roar, as a muffled church-bell tolled. ‘There is no place on this earth for you any more, and in breaking this wand I also break the tie between you and the human race. Only with God may you still find mercy. Woe upon you here! Woe! Woe!’ The clerk would add three more woes. So too would the bailiff. And when the woeing was over, the prisoner’s theoretical expulsion was made practical, as he or she was staked through the heart, burned on a stake, pulped with the rim of a large cartwheel, or strangled from a gallows.
The decentralization meant that German courts would be typified by a relatively freewheeling attitude towards legal technicalities. Far from mitigating the harshness of inquisitorial procedure, however, the flexibility generally made it even more deadly. German judges often enjoyed a particularly broad discretion to pursue obsessions, whether their own or those of their political masters, and all manner of blameless defendants would feel their wrath over the years. Some of the worst injustices came from one particularly dark corner of German jurisprudence: the Jewish ritual murder trial.
The myth that Jews were in the habit of slaughtering young Christians was not born in Germany. The allegation was first recorded in Norwich in 1144, and similar accusations sparked off bloody pogroms in England and France throughout the 1200s. It was only the wholesale expulsion of Jews from both countries (in 1290 and 1306 respectively) that pushed the epicentres of hatred towards Spain and central Europe. But fear and resentment spiralled as the refugees moved and, at a time when the courtroom was becoming the sharp end of political power, Germany’s inquisitors were soon ensuring that both lodged deep within the German body politic.
Their modus operandi is exemplified by a 1476 case that arose out of the Bishop of Regensburg’s discovery that a tortured Jew in Trent had confessed to murdering a Christian child in his diocese. He turned immediately to the local magistrates and in cahoots with the region’s duke, they swiftly itemized the property of the city’s richest Jews. Seventeen were arrested. Although the supposed victim was identified in only the vaguest terms, the judges then drew up a list of twenty-five questions that included the following:
Which Jews brought and purchased the child? Who tortured him? How much money did each Jew give to participate? What was the blood used for? How were the needles used? How were the pincers used? Why was a handkerchief tied around the child’s throat? How was the foreskin on the penis cut off and which Jews cut off the penis and what was done with it? Which Jewesses knew about this and what had they said?
The men, weighed down with stones, were raised and dropped by the rope of a strappado as each question was asked. Within two weeks, six had confessed to the imaginary murder.
The inquisitorial system could also create not just crimes, but entire superstitions. One of the most chilling cases of all, which is also the earliest to be fully recorded, illustrates the process with graphic clarity. In March 1470, workers restoring the charnel house of the small Black Forest town of Endingen reported the discovery of four skeletons, two of which were missing their skulls. It was just a month before Easter, never a high point for Judaeo–Christian harmony in the Middle Ages, and the presence of stray bones in the ossuary sparked panic. Someone recalled that, eight years before, Elias the Jew had sheltered a destitute family, and he and his two brothers were swiftly arrested and subjected to repeated sessions on the strappado. Within days, all had accepted not only that they had murdered the beggars, but also that they had beheaded two children and bathed in their blood.
The interrogations were recorded as they took place, and it is that of Mercklin, questioned after both his brothers had given in, which is the most haunting. He began defiantly, asking why he had to say anything at all if his interrogators already knew him to be guilty. They explained that they wanted to hear the truth from his mouth. Torture soon broke him, but after he confessed he was asked why he and his brothers had drained their victims’ blood. It was a question too far. He had no idea what his tormentors wanted him to say, and the desperation in his voice, as he trawled through their prejudices while the strappado was hoisted and released, echoes down the centuries.
To that he answered in many words, saying at first that Jews need Christian blood because it has great healing power. We would not be satisfied with this answer and told him that he was lying, that we knew why they need it because his brother Eberlin had told us already. To this Mercklin said that Jews need Christian blood for curing epilepsy. But we…would not be satisfied with the answer. Mercklin then said further that Jews need Christian blood for its taste because they themselves stink. But we would not be satisfied with the answer and told him that he was lying, and must tell us the truth, because his brother Eberlin told us a different story; now he must also tell us the truth. To this he answered badly that he wanted to tell us the truth, that he saw it cannot be otherwise…but that Jews need Christian blood [as a holy oil] for circumcision.
It was, at last, the answer that the magistrates wanted and, as was routine for capital offenders in early modern Germany, the brothers were stripped, wrapped in cowhides, dragged to the stake by their ankles, and burned alive.
The punishment was – in extremely relative terms – a mild one. A magistrate elsewhere in Germany might have compounded the humiliation by binding them in pigskin. If they had been thieves, they might have been made to wear hats filled with hot pitch before being hanged. One of the most unpleasant penalties was the one recorded in the adjoining woodcut – involving suspension by the heels between two hungry dogs. But even if the inquisitors of Endingen were not quite as brutal as they might have been, the process that had preceded the penalty was certainly inventive. For it did not so much reaffirm an existing superstition as conjure one into existence. Mercklin’s first answers had regurgitated myths that were common by the 1470s. The notion that human blood could cure epilepsy was so widely held that Germans, regardless of religious belief, would line up to drink thimblefuls of it at public beheadings – until well into the 1800s. The foetor judaicus had been troubling Christian nostrils for centuries, and Freiburg’s councillors had cited Jews’ murderous personal hygiene problems as a reason to expel them as far back as 1401. Mercklin’s final explanation seems, however, to have appeared in writing for the very first time at Endingen.
Quite where it came from is unknown. The focus on foreskins might conceivably have been inspired by Catherine of Siena, recently canonized on the strength of a dream that Christ had given her one, by way of a ring of flesh to wear on her finger.
(#litres_trial_promo) Psychohistorians have, as might be imagined, come up with considerably more involved theories. But whatever the myth’s source, it would endure. The brothers’ confessions were quickly transmitted to other towns along the Rhine, and a link between circumcision and bloodlust very soon became part of the canon of German Judaeophobia. Within a month, four Jewish men in nearby Pforzheim were executed after confessing that they too had killed for the sake of their penises, and similar admissions were obtained six years later by inquisitors in Baden. An unknown writer then re-scripted the narratives into the Endinger Judenspiel, arguably the first trial dramatization of modern European history, which became wildly popular during the seventeenth century and would pack German auditoriums well into the nineteenth. Endingen, meanwhile, celebrated its victory over the eternal Jew by encasing the headless children in a glass cabinet in the town church, until one of its priests decided that their display was a source of shame rather than pride. He reached his conclusion in 1967.
The confidence in rationality that had swept across Europe during the eleventh and twelfth centuries had taken continental jurisprudence a long way. Reason had proved capable of bolstering the most visceral fears and building the most bloodthirsty conclusions. Inspired by a belief that justice was a matter of extracting answers to the right questions, lawyers had developed rules capable of condemning beggars as werewolves. In order to protect Christian children, Jewish prisoners had been identified as vampires. The law’s sturdiest logic could produce the purest fantasy – as was never more apparent than in the context of inquisitorial rules of proof.
The first systematic works on the question of evidence, written by lawyers from northern Italy during the fifteenth and sixteenth centuries, had warned judges that torture was permissible only if circumstantial evidence reached a certain threshold, characterized as a ‘half-proof’ or a ‘proximate indication’. The safeguard, always optimistic, very soon became illusory – because judges, rather than dispense with torture, simply expanded the range of half-proofs. By the 1590s, for example, a suspected thief could be tortured in most parts of Europe if he or she had been spending more than usual. Suspected witches could be tortured in early-seventeenth-century France if they avoided the gaze of their judge. And the rules about half-proofs were complemented by the notion of the ‘perfect proof’, whereby circumstantial evidence, when topped up by a confession, positively required a judge to convict. The logic was elaborate, but the effect was simple: arrest virtually guaranteed torture, which virtually guaranteed conviction.
The diversity of German law meant that its procedures became particularly convoluted. The region’s princes notionally owed loyalty to a ruler whom they elected, and during the sixteenth century a law was enacted by Emperor Charles V that sought to minimize arbitrariness by establishing ground rules that would apply in every German state. The 1532 code, known as the Carolina, permitted each one to maintain its customary laws however, and it aimed only at ensuring that there were ‘legally sufficient’ grounds for torture – with the consequence that it spread inquisitorial lunacies as much as it suppressed them. It advised judges, for example, that torture was permissible if a suspect was ‘insolent and wanton’, or in possession of an item similar to something found at the crime scene. Inquisitors soon got the point, and began developing rules of their own. By the seventeenth century, an unnatural pallor was sufficient to justify torture for several crimes in Frankfurt-am-Main. Suspected adulterers were imperilled simply by being found in an attractive woman’s house – unless the culprit was a cleric, in which case he could be caught in a clinch and the court would presume that he had been ministering to her spiritual needs.
The code also advised inquisitors to seek confessions even where eyewitness testimony and circumstantial evidence were already overwhelming. Prisoners who withdrew admissions on the scaffold might therefore be rushed back to the rack, on the theory that a miscarriage of justice would otherwise ensue. And although the Carolina had been based on a Bamberg statute that pronounced it ‘better to acquit a guilty person than to condemn an innocent one to death’, at least some lawyers took a very different view. Fynes Moryson, an Englishman touring Europe in the late sixteenth century, reported that he had met several who justified deaths through torture with ‘a strange, yet good, saying…namely that it is better one innocent man should dye by triall, then many [guilty] persons should escape for want of [it]’.
It was in eighteenth-century France – a society in which many began to believe that human wisdom was not just improvable but perfectible – that the faith in reason reached its apogee. The spirit of the age was well expressed by the work of an influential jurist called Pierre François Muyart de Vouglans, whose textbooks portrayed French criminal procedure as an almost mathematically precise tool for the discovery of truth. Since crimes were effectively puzzles waiting to be solved, it was positively unjust to hold back when detaining a suspect. ‘The welfare of humanity demands that crime should not remain unpunished,’ he explained. ‘It is for that reason that, in the absence of other means of arriving at [a] complete proof, we are obliged to torture the body of the accused.’ That said, the absence of such proof was no bar to punishment. It had been established in 1670 that anyone who refused to confess was liable to any penalty short of death, and Muyart de Vouglans now explained why: anyone liable for torture was already more than ‘half-convicted’ and deserved a suitably proportioned punishment. If someone’s refusal to confess made a death sentence inappropriate, a judge might, for example, send him to the galleys for life instead. The flexibility of such a system, adjusting the penalty to fit the amount of evidence, represented for Muyart de Vouglans the acme of judicial sophistication. ‘By means of these augmentations and moderations of Penalties,’ he declared, ‘our Jurisprudence has reached a degree of perfection which distinguishes it among civilized Nations.’
Enlightenment rationalism did, however, have a more benign aspect. Previous assumptions about punishment and crime were called into question, and in an age when political philosophers were arguing for the first time that the exercise of power demanded public scrutiny, systematic criticism of the inquisitorial system also began to be heard. The greatest single impetus came in 1764, when an Italian called Cesare Beccaria published a powerful attack on the cruel, arbitrary, and brutal nature of European criminal justice – including a damning critique of the continental reliance on torture – that would define the terms of debate in Europe and America for decades.
Muyart de Vouglans was moved to publish a refutation, but many others were persuaded by Beccaria’s argument – among them, a judge called François Serpillon whose own textbook, published at Lyons three years later, contained another condemnation of torture – all the more persuasive because Serpillon had inflicted it. He reported that the custom in his hometown of Autun was to strip suspects, bind them to a table, and then question them for two hours while their legs were crushed between boards and slowly scalded with twelve pints of boiling oil. He had been present at interrogations twice – once only as a witness, but once (‘compelled’ by the evidence) as the torturer – and neither occasion had ended happily. The good news for the men being questioned was that both had been released following their refusals to confess. The bad news was that the legs of the first suspect had caught fire, necessitating amputation, while the second defendant had been so badly burned that the bones of his toes had had to be removed with pincers.
Another critic of the inquisitorial system, equally vociferous but considerably less compromised by its operation than Serpillon, was Voltaire, who campaigned against its inhumanity for a lifetime, but eloquently damned it with just a few lines in a 1766 commentary on Beccaria’s work. He reported that the inquisitors of Toulouse used not only half-proofs but also quarters and eighths, and came to their decisions by adding them up. A piece of hearsay amounted to a quarter-proof, while an even vaguer rumour might count for an eighth. The result was that eight doubts could constitute a perfect proof and send a man to his death.
Notwithstanding the pride of lawyers like Muyart de Vouglans, the entire edifice of inquisitorial procedure was already tottering by the time that Voltaire wrote his critique. Several European governments abolished torture during the late eighteenth century, and after 1780 even French courts permitted its use only to identify accomplices after conviction. The revolution that began at the Paris Bastille nine years later then saw the system collapse. Within two years, France’s trials had become public and adversarial, defendants had won guarantees against not just torture but oaths, and the power to investigate crimes was at last detached from the duty to judge them.
Enduring reform then came under Napoleon, who enacted a law code in 1808 that would be adopted across Europe and continues to underpin criminal justice systems on the continent today. Although judges can still conduct pre-trial investigations in secret, and dominate courts to an extent that echoes their former role, the malignity of the inquisition is now very much a thing of the past. Later chapters will show that the dangers of unaccountability and torture live on, but those risks are not the relics of any particular legal culture. Abolition of the inquisitorial system did, however, owe much to a very specific rival tradition. For the progressives who campaigned to bring it down modelled their proposals for reform on a criminal process that actually existed on the other side of the English Channel – the jury trial.
3 The Jury Trial (1) (#ulink_bfd3bba7-2375-5a74-b8f0-ce7f2d64fb6b)
He considered what he should say to win over the whole audience once and for all, or if that were not possible, at least to win over most of them for the time being.
FRANZ KAFKA, The Trial
Innocent III’s decision in 1215 to abandon ordeals threw England as much into the lurch as it did the rest of Christendom. For time out of mind, the country’s kings had been subcontracting criminal justice to the clergy, who had been happy to to scald and drown suspected sinners for a small fee. Many ordinary folk had even come to trust trials by fire and water, if only because the primary alternative, trial by combat, seemed suspiciously favourable to whichever litigant was able to afford the better weapons and champion. The country’s response to the abolition of ordeals would, however, be very different from that adopted on the continent.
Whereas continental rulers would turn to the techniques of the papal Inquisition and the rules of canonical law to fill the legal vacuum, the Church would never gain an equivalent degree of influence over royal justice in England. Its legal pretensions had already taken a heavy blow when knights loyal to Henry II had rid their king of turbulent Thomas Becket by braining him in Canterbury Cathedral in 1170. The assassination was followed by important concessions to clerical independence from a penitent Henry, and the English Church of the early thirteenth century was in no mood to rock the boat. While Catholicism’s legal traditions spawned across Europe, nurtured by the demands of its war on heresy, representatives of the English Church positively avoided their country’s royal courts. Clerics would long retain peculiar privileges: they were, for example, granted an automatic immunity from punishment if they read Psalm 51 of the Bible aloud from the dock, a provision that would mutate into ridiculousness over the years as convicts memorized the ‘neck verse’ and merciful judges treated them as monks. Bishops would, for another five centuries, retain the right to try religious crimes such as heresy and moral misdemeanours such as adultery. Canonical law would never get to supersede custom and statute, however. The irrationalities of England’s royal courts would come from sources other than the Good Book.
The authorities initially had little idea what should replace trial by ordeal. Royal judges customarily took the king’s justice to jails around the realm every few years, and their coaches had already left London for the provinces in late 1218, when a rather perplexed note from the guardians of 11-year-old Henry III caught up with them. Proof by fire and water was no longer an option, it reminded them, and they might want to deal with minor cases by exacting promises of good behaviour. Exile would often be appropriate for those suspected of slightly more serious crimes. But all that the note could tentatively suggest for offences of violence or dishonesty was imprisonment – and in an era when judges toured dungeons to empty them rather than fill them up, the proposal was a stopgap rather than a solution. And yet, the king’s advisors had nothing else to offer. ‘For the present,’ they concluded forlornly, ‘we must rely very much on your discretion to act wisely according to the special circumstances of each case.’
England’s judges would rise to the challenge. Their solution was seen for the first time at a trial in Westminster in 1220, when a self-confessed murderer called Alice snitched on five other accused men in the hope of saving her own skin. The charges could not be resolved by battle, because she was a woman, but those she named then agreed to submit ‘for good or ill’ to the judgment of twelve of their property-owning neighbours. Said neighbours promptly swore that one was a law-abiding man but that four were thieves, whereupon the unlucky quartet was hanged. By the following summer, when seven of the king’s judges set out on another circuit of England’s prisons, they had begun to use the new system regularly. Trial by twelve good men and true had been born.
The jury trial would generate countless myths over the following centuries, and those claiming to describe its origins have been among the most tenacious. Athens, Rome, and the Magna Carta – an abortive truce signed in 1215 between King John and rebellious barons – have all, in their time, been credited with inventing the institution. In fact, it owed nothing to any of them. Athenians had judged in groups of several hundred at a time, the mythological Oresteia notwithstanding, and their civilization was one of which few people in thirteenth-century England would even have heard. The Roman Republic had seen the establishment of courts known as the iudicia publica, at which wealthy officers and senators had judged certain offences, but the precedent had no impact at all on English law. The Magna Carta, for its part, asserted that monarchs had to obey their own laws, and used language that would later support arguments for speedy and fair trials, but although it acknowledged pre-existing methods of trial, it did not prescribe any new ones.
No innovation built on tradition has a single source, but some of the rituals from which Westminster’s judges were drawing in 1220 can be identified. England’s rulers had been assembling groups of sworn men to furnish them with information for several centuries, and a link between twelve men on oath and criminal justice had been seen as far back as AD 879, when King Alfred the Great signed a peace treaty with King Guthrum of Denmark. Their agreement, which partitioned England as the price for ending decades of Viking raids, established that a killer in either ruler’s realm could cleanse himself of blood-guilt by producing twelve sworn men (‘if he dares’). Quite where the idea of a dozen judges came from would always excite speculation, with later jurists crediting the Apostles, the tribes of Israel, and so on; but although that mystery remains obscure, it is very clear that in 1220 the number had become conventional. And only a short imaginative step would have been required to transform such compurgation rituals into the jury trial. Even in the early eleventh century, defendants in some cases had been required to choose co-swearers from an independent panel of locals rather than their friends, and the only change required was to turn that exception into the norm. Instead of being allowed to produce their own jurors, defendants would challenge those of their neighbours whom they did not trust to judge them fairly.
Just as there was institutional continuity, the extension of the jury’s role into the field of criminal justice was not a sudden leap from ritual to reason. A society that in 1215 had been committed to the belief that God healed blisters and zapped perjurers for love of justice did not in the space of five years decide that He had lost interest. The new system still relied squarely on the oath, and witnesses played no more than an occasional role in trials until well into the fifteenth century. The earliest jurors were the witnesses and their veredictum – or ‘spoken truth’ – was the only testimony required. God remained the guarantor of justice, and His wisdom was discovered by rituals that treated jurors as ciphers to be cracked rather than as agents of rational inquiry. They were deprived of food, drink, and fire while they deliberated, individually imprisoned if they held out against the majority for longer than a day and a night, and collectively carted from court to court if they swore a verdict that the judge considered perjurious. The crowning absurdity was that, at the same time that jurors were effectively robbed of a right to silence, defendants were formally prohibited from swearing to their innocence – for fear that the guilty among them would otherwise lose their souls.
No thirteenth-century thinker could have been entirely sure that fallible human beings were even capable of stepping into God’s shoes. The risk that a juror might break his oath would have been as keenly perceived as the hope that he would abide by it, while the few people who pondered such matters would have had little confidence in the ability of jurors to assess evidence. As elsewhere in Europe, the unseen deed, like the hidden motive, was widely perceived as a phenomenon beyond mortal ken, unknowable to all but God. England’s first legal writer, Henry Bracton, thus explained in the 1220s or 1230s that it made no sense for jurors to judge a poisoning – the quintessentially secret crime, always associated with sorcery in the pre-modern world – because ‘[they] can know nothing of the deed’. And whereas continental inquisitors would overcome such riddles by subjecting defendants to the rack and strappado, English law would require anyone suspected of particularly mysterious crimes to undergo trial by combat for at least another century.
To the limited extent that the new system did represent a move away from earlier superstitions, it seems to have inspired feelings ranging from trepidation to terror. At one of the first sets of trials, held in Gloucester in June 1221, almost half of the twenty-seven indicted defendants refused to enter a plea. Matilda, accused of murder, declined because she felt that too many people hated her. John explained that he had done far too much evil to want to put his fate in his neighbours’ hands. William, suspected of sheep stealing, backed out after seeing a jury send the defendants immediately ahead of him to the gallows. All the concerns sound eminently sensible, but rationality was certainly not the only force at work. For the judges were almost as unsure about their innovation as the defendants. They did not insist that anyone submit to it, and Matilda, John, and William – along with all the other holdouts – escaped execution. Two of the trio were immediately released.
The judges would soon overcome their compunctions, and by the time they reached Warwick, three months after the Gloucester debacle, they were putting their collective foot down. A murderer and a thief who refused to plead to a jury were unceremoniously hanged, and judges were soon requiring that defendants state – on their knees with right hand raised – that they consented to jury trial ‘for good or ill’. If they refused to do so they would be spread-eagled under stones or lead and given only bread and water until they submitted or died. The suspicions attaching to the novel system were nevertheless such that resistance was widespread for decades, and sporadic for far longer. As late as the mid eighteenth century there would be people who would refuse trial by jury, and England’s authorities retained the right to extract pleas using thumbscrews and millstones until 1772.
Not much is known about the trials that ensued over the next two centuries, but they were certainly very different from their modern counterparts. Although the law’s concern for the fate of defendants’ souls meant that an accused was denied the opportunity to give sworn testimony, few asserted a right to silence – for in the absence of any right to a lawyer, suspects who knew what was good for them argued for their lives. Their opponent was the accuser: prosecuting lawyers appeared only in major cases before the seventeenth century, and independent testimony was all but unheard of until the early 1500s. An English lawyer writing in the 1470s, Sir John Fortescue, found the very notion of witnesses downright sinister. In a lengthy explanation of how English trials were the best in the world, he explained that continental inquisitors not only used unpleasantly belly-bursting, tendon-snapping techniques of torture, but brought people to court to say what they knew. They could, he pointed out, be bribed to say anything. Far more sensible, he argued, to have a system under which no one was liable to conviction except on the sworn evidence of twelve unbiased men.
A gulf had begun to yawn between Europe’s two systems; and notwithstanding Fortescue’s pride, there is little doubt that the courts of the continent had the stronger credentials. Structured around Roman law and inspired by the belief that justice was a matter of clever men applying their minds to a case, they had both tradition and reason on their side. Those of England, on the other hand, rested on a hotchpotch of superstition. Reliance on the ability of unlettered jurors to administer justice was, quite literally, a relic of barbarism.
And yet, for all its irrationality, England was already producing a method of trial considerably more benign. The notion that some matters were simply unknowable was helping to restrain the temptation to torture: against the bloody record of continental Europe, kings and royal officials would issue no more than eighty-one torture warrants over the entire course of England’s history. English judges were also in a better position – at least potentially – to appreciate human frailty. Denied the right to seek the truth through force and required to sit alongside ordinary jurors, they could say, as Chief Justice Brian did in the late 1400s, that, ‘The thought of man shall not be tried, for the devil himself knoweth not the thought of man.’ And whereas continental justice was becoming a secret process, controlled by adepts who kept a lid on its mysteries until the moment of judgment, English trials were already virtually defined by their openness. The need to assemble jurors made it impossible to exclude the public, and although sheriffs and jailers would extort admission fees until the 1700s, large crowds invariably entered in their wake.
The characteristics of English courtrooms were, like all customs, as accidental as they were determined. They would, however, collectively define a notion of justice that would be of lasting significance – in England first, and then far beyond. And the most important accident of all was publicity, which would now turn the trial from an oath-taking ritual into a dynamic contest of fundamental political and social significance.
The background to the transformation was the crisis that tore England apart in the aftermath of Henry VIII’s break from the Roman Church in the 1530s. Henry, anxious to secure spiritual approval for sexual relations with Anne Boleyn, spent the late 1520s unsuccessfully lobbying the pope for a divorce, eventually growing so irritable that in 1534 he established his own national Church. It was enough, very temporarily, to resolve his marital difficulties, but it also marked the beginning of a very troubled era in English history. Over the next decade, Henry beheaded and divorced his way through another three marriages, decimating English Catholicism in the process. As traditional bonds of religious and national fidelity snapped, his government sidelined regular legal procedures in favour of the rudiments of a police state. Tribunals such as the Privy Council and Star Chamber assumed the power to punish without trial, and the torture chamber of the Tower of London was replenished and used to a greater extent than ever before. Henry simultaneously redefined treason to force his subjects to recognize his new authority or make their opposition apparent. The crime had never been the most tightly defined of offences – capable of penalizing acts ranging from fornication with the royal consort to forgery of a sixpence – but remaining outside its parameters now became an almost acrobatic act. The laws that attempted to keep up with Henry’s marital shenanigans are a case in point. The 1534 Act of Succession suddenly rendered it treacherous to deny the legitimacy of Elizabeth, his daughter by Anne Boleyn, or to assert that of his firstborn Mary. Two years later, another statute granted free pardon to anyone who had asserted the whoredom of Anne or the bastardy of her child. In 1543, with Henry planning an invasion of France, fears of familial oblivion generated a final burst of paternal pride, and he pronounced that anyone who refused to confirm the birthright of either daughter would be hanged, drawn, and quartered.
The oscillations only intensified after Henry’s death in 1547. Edward VI had barely hit puberty when he himself died, aged 15, in 1553, and Mary Tudor then threw the ship of state into reverse by restoring English Catholicism and burning some three hundred Protestants to prove it. Her half-sister, Elizabeth, gave the wheel another turn in 1558. Although conciliatory by temperament, she restored Protestantism as the national religion and soon found herself caught between a regrouping papacy, ambitious monarchs in Spain and France, and a realm on the verge of civil war. In pursuit of peace she flirted politically and socially with almost every eligible Catholic on the continent, but her legitimacy, in every sense, depended on the men of Rome – and they were not to be charmed. Pius V excommunicated her in 1570. Ten years later, Gregory XIII’s Secretary of State let it be known that an assassin could expect not just forgiveness from God, but positive gratitude.
In reaction to the papal fatwas, Elizabeth’s government mounted an increasingly ferocious assault on the Catholic enemy within. The authoritarian machinery that had taken shape under her father swung into action against religious insurgents real and imagined, while an equally threatening surge of ordinary crime inspired the construction in 1571 of a triple-beamed gallows that would soon become a byword for legal cruelty in England – Tyburn. By the 1590s a visiting Duke of Wirtemberg was able to count more than thirty grinning heads as he strolled across the towers and twenty arches of old London Bridge. Punishments did not just increase in number. Since the reign of Henry VIII, their variety had also been propagating,
(#litres_trial_promo) and they now flowered into a pattern of dizzying complexity. Minor criminals might be dunked or made to wear a placard carrying the name of their crime. Felons often had the initials of their offence inscribed in their flesh, while those who devalued the royal coin were made to pay with the loss of their ears and nostrils. The symbolic amputation once imposed on libellous printers by Mary Tudor was also revived – claiming, among its first victims, the appropriately named John Stubbes, who exuberantly raised his hat and yelled ‘God save the Queen’ as a mallet was hammered through his right wrist. One case from 1594 can stand as memorial to all the thousands of other butcheries. It concerned five men convicted of a string of felonies ranging from counterfeiting to blackmail: four were sentenced to ‘stand on the pillory and lose their ears if they have any’ before being branded on the forehead with the letter ‘F’. Elizabeth’s most trusted judge, Lord Burghley, complained that such burns healed too quickly and proposed to ten of his fellow Privy Councillors that the Fs should instead be carved into the convicts’ cheeks and have coloured powder rubbed into them. It seems, thankfully, to have been a proposal too far. According to the lawyer who reported the case, ‘the others made no reply to this’.
The spread of corporal punishment was not unusual. Rulers across Europe were relying on the appearance of power to magnify its reality, and in Elizabeth’s realm – riddled by spies, convulsed by rebellions and consumed by crime – the need to show subjects who was in control was a pressing one. But English criminal justice underwent a second, unique, transformation – for it did not use just human bodies as billboards for government authority. At the very same time that the rulers of France and Germany were ending the last vestiges of courtroom publicity, the English government embarked on a deliberate policy of using not just punishments but trials to show where power lay.
Henry VIII had sown the seeds with condemnations of, for example, Thomas More and Anne Boleyn, but it was during the reign of Elizabeth that the strategy reached fruition. Under the hammerbeam roofs and stone vaults of England’s palaces, traitors stood behind solemn pikemen to hear their crimes described and their protestations of innocence ridiculed by some of the finest advocates of Renaissance England. Vast crowds were permitted to attend, and although witnesses were still forbidden to defendants, they increasingly appeared on behalf of the Crown – often very suddenly. At the trial of the Earl of Essex, for example, the Lord Chief Justice stepped down from the benches to testify at the behest of the Attorney-General while a Privy Councillor emerged at one point from a secret listening post to interrupt and contradict the defendant. And when it was all over, convocations of robed judges invited the jurors to consider the question of innocence or guilt. The verdicts rarely surprised. Records of the proceedings, transcribed by squads of stenographers, were then turned into anti-Catholic propaganda and published in English and Latin for the benefit of audiences domestic and European.
The hearings were rituals of condemnation rather than inquiry, and only a handful of acquittals ever occurred – but the insistence on public articulation meant that even the most careful preparations could suddenly go awry. When William Parry appeared at Westminster Hall in 1585 to answer charges of attempting to assassinate Elizabeth, he wearily entered a guilty plea and declared that, ‘I desire not life, but desire to die’. But the court was packed with Londoners anxious to see Parry get his comeuppance, and instead of moving directly to sentence his judges ordered that his confession be read aloud, ‘that everyone may see that the matter is as bad as the Indictment purporteth’. As Parry heard his words repeated, steel returned to his broken frame. ‘Your Honours know…how my confession was extorted,’ he declared. They fired back that torture had not been used. It had been threatened, he retorted. Charge and counter-charge spiralled, until Parry was denying any intention to kill the queen at all and promising to ‘lay his blood’ amongst the judges if they condemned him to death. The rattled men of the bench, warning him against such ‘dark speeches’, ordered that he be hanged, drawn, and quartered. A process that would have remained behind closed doors on the continent ended with the defendant being pulled down the riverside steps past a hooting mob, demanding ‘in his rage and passion’ that Elizabeth be summonsed ‘to answer for my blood before God’.
No trial better illustrated the unpredictable force of publicity than one that occurred under the reign of Elizabeth’s successor, King James I, in November 1603: the prosecution for treason of Sir Walter Raleigh. Drama was virtually guaranteed from the outset. Until Elizabeth’s death in March 1603, Raleigh had enjoyed a charmed existence. Tall and elegant, he had shimmered like a peacock in a court where looks had mattered. After sponsoring England’s first American colony at Roanoke in 1585, he had introduced Elizabeth’s entourage to the pleasures of tobacco, and done more than any man alive to popularize the potato. Most heroic of all were his exploits against Spain, whose fleet he had taken on in battle three times. As England had flexed its maritime muscles he had trespassed even further into the heart of Spanish darkness, returning from one voyage in 1595 with tales of a land called Guyana where the natives’ heads grew beneath their shoulders and precious metals veined every rock. El Dorado, he had reported, was just a return trip away.
All the derring-do came with an arrogance that lost friends as easily as it won them, however. Even Elizabeth sent Raleigh to the doghouse for several years when he breached palace protocol by impregnating one of her maids of honour, and the fastidious James took against him almost instantly. Though unequivocally Protestant, the king was always more concerned to steady his wobbly throne than to fight the old religion, and was as underwhelmed by Raleigh’s anti-Spanish credentials as he was unimpressed by his fondness for tobacco. Within months of James assuming the throne, the monopolies, patents, and privileges dispensed by Elizabeth were suspended and Raleigh had lost his grace-and-favour mansion. Although inconvenient, it seemed no more than a routine shake-up – until in the summer, one of Raleigh’s closest friends, Lord Henry Cobham, was implicated in a Catholic plot to overthrow the king. No evidence linked Raleigh to the conspiracy, but he too found himself under arrest in mid July on suspicion of treason. The rogue of the old dispensation was about to turn into the whipping boy of the new.
In November 1603, with a plague epidemic claiming two thousand lives a week in London, the entire court decamped to the ancient city of Winchester for the trials. The city traced its history back to Rome and its mythology back to Camelot, but this was the grandest show that it had seen in a long while. Scholars were thrown out of their cathedral lodgings to accommodate the jurists, James set up field headquarters at a nearby mansion, and carriages laden with judges, jurors, lawyers, and defendants were soon streaming through its gates. Raleigh took up residence at the castle dungeon on 15 November, and arrived to the news that several of the Catholics charged with conspiring against James had just been tried, and that all but one had been sentenced to death. Although Raleigh’s own interrogators had never sought to link him to a broader plot, it was not a good sign.
Early in the morning of 17 November Raleigh was escorted by pikewielding guards down to the Bishop’s Palace, and led into its sepulchral courtroom. His plummeting fortunes had been entertaining the country for months, and popular interest in his anticipated destruction was immense. On the five-day journey from London, his carriage had been received with abuse, rocks and showers of clay pipes throughout (inspiring Raleigh laconically to observe that ‘dogs do always bark at those they know not’), and the pillars, bays, and benches were now filled. Aristocrats and commoners sat cheek to cheek, exhaling large clouds of tobacco smoke if other trials of the time are a guide, as they waited for the show to begin. Almost all would have been hoping to see the final act of an epic life.
All seemed set fair to sink Raleigh. A phalanx of eleven royal commissioners, all of whom had helped investigate the plot against James, sat at the front of the court, four wearing the scarlet robes and black cornercaps of high judicial office. Local legend tells that the king himself was concealed in a cubbyhole, his ear to a listening hole, and although unlikely (because James had specifically sent reporters to court) it would not have been out of character; he secretly eavesdropped at many other major trials that occured during his reign. And at the prosecution benches, flanked by his fellow lawyers, was the most feared advocate of the day: Attorney-General Sir Edward Coke.
The lawyer, in his early fifties like Raleigh, was in many ways the mirror image of his adversary. Equally imposing physically and no less confident personally, he epitomized just as Raleigh did a social type that was emerging for the first time in England: the self-made man. Each was born into a comfortable but non-aristocratic family; and although they had frequented different types of court, both had clambered up the hierarchy with a judicious combination of back-stabbing, fawning, and charm. Like many Elizabethans on the make, both were also masterful rhetoricians. In a fluid society where a commoner could no longer become a monk but could be appointed Attorney-General or mount a search for El Dorado if he sounded convincing enough, the ability to persuade was becoming an essential skill. Raleigh was a talented poet and writer while Coke, though always more likely to censor England’s theatres than to attend them, had an eloquence renowned even among contemporaries who were rarely tongue-tied. Elizabethan schoolboys were taught adoxography, the art of eruditely praising worthless things.
(#litres_trial_promo) Coke mastered a converse skill – and with his words, he sent scores of men careening to their deaths.
The power was one that he exercised with pleasure. When the Earl of Essex told his treason jury in 1600 that Coke was ‘play[ing] the orator’ and displaying ‘the trade and talent of those who value themselves upon their skill in pleading innocent men out of their lives’, the remarks contained the soupçon of an aristocratic sneer. But the trade and talent of the commoner from Norwich Grammar School was enough to persuade twelve peers to despatch Essex to the chopping block, and Coke would only have taken the complaint as a compliment. For he prosecuted with a passion that went beyond the call of professional duty. It was a quality exemplified in his verbal duel with Raleigh, which has good claim to be the most abusive courtroom battle in England’s history.
As was usual, Raleigh had not seen the indictment before coming into court, and he now heard for the first time that he had supposedly agreed with Cobham to raise rebellion on behalf of Spain’s king and hand James’s crown to a Catholic pretender. That came as little surprise, but Coke then continued, apropos of nothing very much, with lurid accounts of the conspiracies of which the other plotters had been convicted two days before. Raleigh listened in silence for several minutes, before pointing out that their crimes had nothing to do with him. Coke did not deign to reply directly. ‘Like Sampson’s foxes, [the treasons] were joined in the tails though their heads were severed,’ he pronounced, before stitching together several non sequiturs of his own. Treason, he explained to the jury, had its root, bud, blossom, and fruit, and this was treachery so radical that it had not even been put into effect. The others had already been convicted of plotting against ‘the [king] and his cubs’, he pointed out, before swivelling towards Raleigh. ‘But to whom, Sir Walter, did you bear malice? To the royal children?’ As though accosted by a drunkard with a knife, Raleigh’s reply was nervous courtesy itself. ‘Mr. Attorney, I pray you to whom, or to what end speak you all this?…What is the treason of [the others] to me?’
Oozing a vitriol that still hisses from the page, Coke finally homed in on his quarry. ‘I will then come close to you. I will prove you to be the most notorious traitor that ever came to the bar.’ Raleigh replied that if the lawyer could prove anything at all, he would admit not just that he was a traitor but that he was ‘worthy to be crucified with a thousand torments’. ‘Nay, I will prove all,’ growled Coke. ‘Thou art a monster; thou hast an English face, but a Spanish heart.’ He continued with another sustained attack on various betrayals supposedly committed by Lord Cobham, who was awaiting his own trial in a dungeon below the court. ‘What is that to me?’ Raleigh demanded. ‘If my Lord Cobham be a traitor, what is that to me?’ Coke erupted with anger. ‘All that he did was by thy instigation thou viper, for I thou thee, thou traitor!’ All the thouing, a form of address conventionally used for children, servants, and animals, threatened to turn the exchange into a slanging match, but Raleigh’s retaliation remained restrained. ‘You may call me a traitor at your pleasure, yet it becomes not a man of quality and virtue to do so,’ he replied, ‘but I take comfort in it, it is all that you can do.’ Lord Chief Justice Sir John Popham – a massive presence in a blood-red gown – stepped in to separate the men. ‘Mr. Attorney speaks out of the zeal of his duty for the service of the King; and you for your life,’ he told Raleigh, ‘be patient on both sides.’
Any hope of a clean fight was, however, doomed from the start – for it very soon emerged that the combatants did not even agree on the contest’s rules. In particular, they had diametrically opposed ideas about what constituted evidence. When Coke responded to Raleigh’s challenge by declaring that he would turn to his proofs, he read aloud an unsigned statement in which Lord Cobham was said to have confessed, four months earlier, that Raleigh had incited him to serve Spain. Raleigh, after reminding the jurors that he had done more than most to subvert Spanish interests, asked that Cobham make the claim to his face. Every defendant, he argued, had the right to confront his accuser. The law of England, like the Book of Deuteronomy, guaranteed that no one could be convicted of treason unless publicly charged by at least two witnesses.
The claim caused consternation among the judges; and although one reason was that Raleigh was simply wrong under the law of the time, the discombobulation reflected more than disagreement over the technicalities of treason. It was still just a few decades since witnesses had first begun to appear in trials – and the judges thought it preposterous to propose that criminal allegations required testimony at all. ‘I marvel, Sir Walter, that you, being of such experience and wit, should stand on this point,’ said Justice Warburton, ‘for many horse-stealers should escape if they may not be condemned without witnesses.’ When Raleigh insisted that the whole purpose of a trial was to allow a jury to weigh up the prosecution’s evidence, Lord Popham hoisted his bulky frame back into the fray. He had already told the jury that he could personally vouch for the truth of Cobham’s confession, having taken it himself, and his intervention was as predictable as it was decisive. No, he declared abruptly, trials did not require witnesses. A person could be convicted on the strength of confessions and statements that had been recorded before the hearing. ‘I know not, my Lord, how you conceive the law,’ responded Raleigh, ‘but if you affirm it, it must be a law to all posterity.’ ‘Nay, we do not conceive the law,’ boomed Popham. ‘We know the law.’
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Any doubts that Coke might have had about his case were finally dispelled. He returned to the attack, now reciting from statements made by the men already convicted, in which they repeated rumours, second- and third-hand, about Raleigh’s willingness to betray England. ‘O barbarous!’ exploded Raleigh. ‘Do you bring the words of these hellish spiders against me?…I find not myself touched, scarce named; and the course of proof is strange; if witnesses are to speak by relation to one another, by this means you may have any man’s life in a week; and I may be massacred by mere hearsay.’ He pleaded again for Cobham to be produced in court but Popham held firm, pointing out – plausibly, if unhelpfully – that he might recant and confuse the jury.
As if to taunt Raleigh, Coke then produced a second statement from Cobham in which he apparently claimed that Raleigh had written to tell him that traitors were immune from punishment in the absence of two accusers. When Raleigh vehemently denied writing such a letter, the prosecutor announced that he would, after all, call a live witness. All heads turned – to see an unknown character step forward. The man identified himself as a sailor called Dyer, and told the jurors that someone in Lisbon had once told him that James would never be crowned king of England because Don Raleigh and Don Cobham would slit his throat first. He then drifted away as mysteriously as he had arrived. A flabbergasted Raleigh inquired how the supposed ramblings of an unknown person in Portugal could possibly implicate him. ‘Your treason’, snarled Coke, ‘had wings.’
As the hearing neared its conclusion and Raleigh pleaded with the jury to judge him as they would want to be judged, Coke demanded ‘the last word for the King’. ‘Nay, I will have the last word for my life,’ replied Raleigh. ‘Go to,’ exploded the Attorney-General.’ I will lay thee upon thy back for the confidentest traitor that ever came to the bar!’ Even the judges now sided with Raleigh until Coke sat down and petulantly accused them of encouraging treachery. They relented, like bad parents with a worse child, and begged him to carry on – which he did, at length. His summary of all the statements that everyone had already heard elicited yet another protest, and Coke let loose with one final spray of abuse. Addressing Raleigh to his face, he condemned him as ‘the most vile and execrable traitor that ever lived’, ‘an odious fellow’ whose ‘name is hateful to all the realm of England for thy pride’. As cool as his opponent was incontinent, Raleigh wondered which of them deserved the superlatives. ‘It will go near to prove a measuring cast between you and me, Mr. Attorney.’
The sympathies of the spectators had indeed shifted. One of James’s courtiers later told the king that ‘he would have gone a thousand miles to have seen [Raleigh] hanged’ at the beginning of the trial, but ‘would…have gone a thousand to save his life’ by its end. ‘In half a day’, another observer reported, ‘the mind of all the company was changed from the extremest hate to the greatest pity.’ Coke’s attacks inspired such hostility among bystanders, wrote someone else, that ‘calling hym base trash [they] begann to hyss’ while Coke himself looked ‘to be something daunted’. But the lawyer also had the thick skin of a seasoned showman – and the nous to save the best till last. Like a knife thrower with one final trick, Coke now pulled a scroll from his pocket, and the crowd hushed.
He had in his hand, he announced, a signed letter that Cobham had written just the day before. The prisoner had been so troubled by a guilty conscience that he had been unable to sleep and he had now chosen finally to unburden himself. ‘I have thought it fit’, recited Coke in his powerful voice, ‘to write nothing but what is true; for I am not ignorant of my present condition, and now to dissemble with God is no time.’ Raleigh, the letter continued, had written to him in his jail cell – not just once, but twice – and urged him to withdraw his accusations of treason. But Cobham would not do so. Indeed, ‘craving humble pardon’ for his ‘double dealing’, he now claimed that Raleigh had solicited an annual payment of £1500 from the Spanish government in exchange for his services as a spy.
Raleigh was visibly shaken. He eventually handed up a letter, smuggled out of Cobham’s cell, in which the prisoner said precisely the opposite, protesting Raleigh’s innocence, but it came as a damp squib after Coke’s pyrotechnics. Raleigh admitted also that he had indeed written twice to his old friend, that he had been offered £1500 to be a spy and that he had been wrong to conceal that fact from the court. ‘But for attempting or conspiring any treason against the King or the State,’ he insisted, ‘I still deny it to the death, and it can never be proved against me.’ It was all too late. Even if Cobham was a double-dealer on his own admission, Raleigh’s own words suddenly sounded like those of a man with secrets to hide.
After the jurors were told by one of Coke’s colleagues that the defendant had to prove his innocence, a common view in the seventeenth century, it took them just fifteen minutes to return a guilty verdict. Lord Popham then delivered the standard sentence for traitors, ordering that Raleigh be dragged to the scaffold and half-hanged, before being made to watch while his intestines and penis were tossed onto a fire. He was then to be decapitated and cut into quarters, each flank to be disposed of at the king’s pleasure.
Such a sight would have made a great many people very happy in 1603, but Raleigh’s life had further to run. He was spared by James and spent more than a decade confined to quarters in the Tower of London, conducting chemistry experiments, writing a history of the world and imagining lands and times far away. Then, in 1616, opportunity knocked. James, ruminating on Raleigh’s claims to have stumbled upon the route to El Dorado, had decided that a little unfathomable wealth would be no bad thing. He could, declared the king, set off to find the fabled city – a fifth of all receipts to go to the Crown. Raleigh, presented with one last glimpse of glory, set sail on 12 June 1617. By the time he returned a year later, the dream had turned to dust. Skirmishes and smallpox had devastated his crew. Among the scores of men that he had left buried on the banks of the Orinoco were his lifelong servant and his eldest son. And instead of cargoes of bounty, he trailed in his wake only furious complaints from Spain’s ambassador that he had attacked one of that country’s colonial outposts.
James, deeply unimpressed with his fifth of nothing, now judged it politic to appease the national enemy. The man who had been condemned for serving Spain was about to pay a heavy price for having offended it, for instead of giving Raleigh another trial the king decided simply to enforce the penalty that he had stayed fifteen years before. Sentence was pronounced at a hearing at which Attorney-General Sir Henry Yelverton delivered a Luciferian epitaph for Raleigh. He had lived ‘as a star at which the world hath gazed’, he told the judges, ‘but stars may fall, nay, they must fall when they trouble the sphere wherein they abide’.
The end came on a chilly morning in late October 1618. The crowd’s sympathies were this time squarely with Raleigh. At a time when Elizabethan England was already receding into mythology, his erstwhile arrogance had come to seem fitting to an age of giants, and the doomed quest for El Dorado had tempered its edge with tragedy. The panache with which he now lost his head would propel him into the pantheon of great dead Englishmen. After a long speech that ended with an invitation to the spectators to join him in prayer, the sexagenarian, etched and grey, thumbed the blade of the axe that would kill him. It was ‘a sharp medicine’, he murmured, ‘but it will cure all diseases’. He knelt at the block and, told that he was facing westwards – away from the traditionally presumed direction of the Last Judgment – declined to switch direction. ‘What matter how the head lie, so [long as] the heart be right?’ he asked. His last words, refusing the headsman’s offer of a blindfold, were suitably swashbuckling: ‘Think you I fear the shadow of the axe, when I fear not the axe itself?’ The show was over – and with a final flourish, Raleigh threw his arms above his shoulders to call down the curtain.
Whether Raleigh was in fact innocent of the treason charges laid against him in 1603 is as questionable today as it was four centuries ago. He certainly had reason to fear that his influence would decline after Elizabeth’s death, and although his score sheet against Spain was impressive, he lived in an age when allegiances were honoured in the breach as much as in the observance. For what it was worth, Cobham reasserted Raleigh’s guilt at his own trial and maintained the accusation ‘upon the hope of his soul’s resurrection’ as he stood upon his scaffold.
Raleigh’s trial was important, however, for reasons that transcended the truth or falsity of the charges. The sight of him struggling for his life against a phantom accuser, damned by documents that were dealt out like a blackjack hand, was so palpably unfair that it almost immediately became a model for how things ought not to be done. Several of the king’s advisers – including Edward Coke – urged James in 1618 to give him a second trial, with witnesses; and although the monarch remained ruthless as ever, reminding them that Raleigh had ‘by his wit…turned the hatred of men into compassion,’ the proceedings would fall ever deeper into disrepute. Raleigh himself claimed at his condemnation that one of the judges had repented of his role at Winchester from his deathbed. By 1656, an anonymous pamphleteer was swearing that Coke had privately expressed shock at the jury’s verdict, while another writer recorded that the jurors had knelt to beg Raleigh’s forgiveness after convicting him. All the stories were as incredible as they sound, but the speed with which they were recounted and believed is a sign of just how emblematic the trial had become. The myths would in time contribute to ideas even more far-reaching: that courts were there to limit state power as much as to express it; that prosecutions could be unfair even if a defendant was guilty; and that justice was done only if seen to be done. And they did so simply because transparency had made the unfairness of the alternative so manifest.
An ironic postscript is that few people did more to promote the vision of liberty that would accompany the sanctification of Raleigh’s trial than Sir Edward Coke himself. In 1606, King James promoted his Attorney-General to Chief Justice of Common Pleas, at which point the erstwhile lapdog clenched his teeth around the hand that had fed him, and bit – hard. For the two decades that remained of his life, he would not let go. At a time of political turmoil, when thinkers across Europe were pondering the ideal relationship between God, monarch, and subject, James had written a treatise arguing that kings were above human laws and followed them voluntarily, if at all. Coke, by way of several court rulings, case reports and a monumental textbook, begged to differ, insisting that rulers obeyed because they had to. To cut a very long story extremely short, his arguments won. The Puritan rebels who chopped off the head of James’s son, Charles I, cited him as their legal authority in 1649. Towards the end of the next century, his work would enjoy an even more lasting impact – inspiring American revolutionaries from John Adams to Thomas Jefferson, when they too concluded that it was time to cut their rulers down to size.
Raleigh’s claim that criminal trials were public arguments over the meaning of testimony would, of course, be vindicated, but a crucial issue remained unresolved. The ancient notion that jurors themselves were somehow witnesses had always made for a certain tension as to their proper role. It was widely agreed that juries decided questions of fact, but those decisions could be regarded as statements so sacrosanct as to be unquestionable. They might alternatively be seen as lies, tantamount to perjury. Which view prevailed depended simply on whether judges would presume to decide that jurors had breached their oaths to God.
The chances that they would do so had built throughout the 1500s, as England’s expanding middle class grew ever more likely to stand up to their social superiors. By the end of the century, it was becoming increasingly common for judges to fine jurors – sometimes for returning a supposedly corrupt verdict, and sometimes simply for breaching the ancient rules requiring that they deliberate without food, drink, and fire. John Mucklow was imprisoned and fined twenty shillings in the mid 1570s after being caught smuggling preserved barberries, sugar candy, and liquorice into the jury room. A decade later, several jurors who were taking too long over their verdicts were searched and again found to be in possession of contraband: two who confessed to eating figs were fined £5 apiece, and three who admitted possession, but not consumption, of apples, had to pay forty shillings. Such disputes turned on fruit, but they reflected an issue that was anything but trifling: the ancient question of who in the community wielded the ultimate power to judge.
The case that brought the conflict to a head – the prosecution of two Quaker activists in 1670 – could hardly have been more perfectly designed to do so. In a country still rolling with the aftershocks of a civil war that had seen a monarch executed, the Church abolished, and each institution revived within a dozen years, deference was in short supply. Nonconformists such as the Puritans had led the revolt against King Charles I, while countless other sects had thrived during the subsequent eclipse of Anglicanism, and few were friendly towards the notion of secular rule. Several had theological objections to tax. Some had a problem with human law in its entirety. All were anathema to the restored forces of royalism.
Almost as soon as it took power, the new government had enacted statutes to reassert the authority of the official Church. The most draconian was the Conventicle Act of 1664, which made it an offence – punishable by death, if repeated – to participate in any act of nonconformist worship involving more than four people. Over the next few years, thousands of prosecutions were launched, and hundreds of dissenters were transported or executed for violating the statute. The Act came up for renewal in 1670, provoking protests across England. One of the demonstrations, staged by Quakers, would give rise to the most significant jury trial in history.
The Quakers were a threatening bunch from the standpoint of the status quo. Founded by a man who claimed a hundred and fifty miracles to his credit and named for their tendency to tremble and yelp while at prayer, adherents rarely met a convention that they did not despise. Some regarded clothes as superfluous and perambulated in the nude. Others went in the opposite direction and kept their hats on in the presence of social superiors – an expression of sartorial independence that sometimes inspired no less distress than the nudity. Several set out to undermine the greatest certainty of all, staging enthusiastic attempts to raise the dead. The eccentricity was accompanied by a dynamism that put them at the front line of resistance during the 1660s, and when word spread in August 1670 that they would be holding a prayer meeting at a hall in London’s Gracechurch Street, the authorities took no chances. Would-be worshippers arrived to find the doors padlocked. Among those worshippers, however, were two men who realized that the closure made a protest easier than ever. Turning to a crowd that was perhaps a hundred times the size permitted by the Conventicle Act, a 25-year-old called William Penn began to speak. Within minutes, he and a 42-year old linen draper by the name of William Mead were under arrest.
Battle was joined two weeks later at the Sessions House of the Old Bailey. The Fire of London had reduced much of the capital to waste four years before and its courthouse had been temporarily relocated into a wooden shack; but the surroundings belied the significance of the moment. The people present, who included five aldermen and a hundred or so spectators, were in for a magnificent show.
Presiding over the court were London’s two most senior judges – its staunchly royalist
(#litres_trial_promo) Lord Mayor, Samuel Starling, and Recorder Thomas Howel – and they were resolved from the outset to make an example of the nonconformist troublemakers. Both defendants were kept waiting in the malodorous holding cell for the sitting’s entire first day, while the court processed assorted ruffians and cutpurses instead, and when it reconvened two days later, the judges were ready with a second surprise. Aware of the Quakers’ touchiness about headgear, Samuel Starling had determined to cite both men for contempt as soon as they entered court – and when an over-eager bailiff accidentally upset his plans, he refused to be denied. ‘Sirrah, who bid you put off their hats?’ he yelled. ‘Put [them] back on again.’ The defendants were duly re-hatted, whereupon Thomas Howel fined them forty marks (a sum that could have paid for another hundred hats) for refusing to take them off again.
The authorities had charged both men with addressing a tumultuous assembly, a violation of common-law custom – doubtless concerned that a charge under the Conventicle Act might turn the trial into a direct assault on the statute. But Penn was not someone who could be so easily wrongfooted. A portrait painted some four years earlier shows an elegant and self-possessed young man, and although a committed religious rebel, he was easily the social and intellectual equal of his judges. The son of an admiralty official acquainted with King Charles II, he had studied at Oxford – before, on his own account, being ‘banisht’ – and the contrariness that then took him into several jails had not stopped him from picking up a legal education at Lincoln’s Inn. And like any eighteenth-century Quaker, he could talk the talk at least as well as he walked the walk. Told the charges against him, he asked that they be put in writing because they were too long to remember and then demanded to know ‘upon what law you ground my indictment’. Thomas Howel replied it was based on ‘the common law’. And where, Penn asked, might that be found? The flustered judge took refuge in Latin, declaring that it was lex non scripta – or unwritten law – and a thing ‘which many have studied thirty or forty years to know’. If it was that hard to understand, countered Penn, it did not sound very common at all.
It was presumably crowd-pleasing stuff, but the trial itself, like most hearings of the period, was a perfunctory affair. Four men trooped through the witness box to state that Mead had been at Gracechurch Street, that Penn had ‘preached’ words that they could not recall, and that there had been several hundred people on the scene. When the defendants tried to address the jurors – contending that they should not be convicted because they had not incited violence, and pleading with them to remember that their verdicts would affect tens of thousands of lives – they were swiftly dragged into the holding cell. As Penn continued his speech from below the court, Howel told the jurors that they had heard evidence proving the indictment and should now return their verdict. There is no doubt what he expected it to be.
But events then took an unexpected turn. The jurors asked for time to consider their decision – a request that was itself becoming unusual by the late seventeenth century – and it was an hour and a half before they returned. Eight were ready to convict, but four of them, led by a wealthy Puritan sugar merchant named Edward Bushel, were not prepared to do so. Starling declared Bushel ‘impudent’, and the jurors were sent away to think again. If the rebuke was supposed to fortify the majority, the judges were in for a shock. By the time the jurors returned, Bushel had been elected their foreman, and he now declared that Penn was ‘guilty of speaking in Grace-Church Street’. Since speech alone had never been a crime under English law, non scripta or otherwise, the finding amounted to a verdict of not guilty. ‘Is that all?’ barked Howel. ‘You had as good say nothing.’ Sent off again, the jurors asked for a pen, ink, and paper and returned with a verdict in writing. Penn was guilty only of speaking, they repeated, and Mead was not guilty, full stop. Howel coldly informed them that they would not be going home until they had reversed both decisions. The court would meanwhile adjourn for the night. And after reminding the bailiff of his traditional duty to withhold food, drink, and fire from the jurors, he added the novel instruction that they be denied a chamber pot.
The court reassembled at seven the next morning. Hungry, thirsty, and smelly the twelve men in the box may have been, but they were even more resolute. Bushel, asked for a verdict, repeated that Penn was guilty of speaking in Gracechurch Street. ‘To an unlawful assembly?’ inquired Starling, menacingly. ‘No, my Lord,’ replied Bushel, ‘we give no other verdict than what we gave last night; we have no other verdict to give.’ Starling, livid, declared that he would cut Bushel’s throat if he ever got the chance. The jurors were sent away again.
They eventually returned to reconfirm that they had nothing to add, and the judges finally snapped. An apoplectic Starling abused them for their choice of foreman, and threatened to slit Bushel’s nose. When Penn protested, the Lord Mayor told the jailer to gag him and spluttered that he should also be chained to a stake. Recorder Howel was no happier. ‘Till now’, he bellowed, ‘I never understood the reason of the…Spaniards, in suffering the inquisition among them: and certainly it will never be well with us, till something like unto the Spanish Inquisition be in England.’ The twelve men, he declared, would either convict or starve. Another night in Newgate’s fetid dungeons followed. But the jurors were no longer teetering on the brink. They had hit the bottom and bounced. On the following morning, they formally returned not guilty verdicts against both defendants.
Thomas Howel imposed swingeing fines on everyone, with indefinite jail terms for those who would not pay – and Bushel, along with three of his colleagues, chose jail. Their resilience was remarkable. Typhoid and dysentery were so endemic in prisons of the time that around one in ten inmates died awaiting trial, and no judge had ever before entertained a complaint against another’s decision to punish his jurors. But after they had spent ten weeks in Newgate’s excremental gloom, Lord Chief Justice Vaughan agreed to hear their request to be released – and he then freed them by way of the most significant legal ruling in the history of the jury trial. Two people, he insisted, could honestly disagree even when bound by oath. After almost half a millennium, the idea that a juror swore to what he knew rather than to what he believed was finally laid to rest. ‘The Verdict of a Jury, and Evidence of a Witness are very different things,’ explained Vaughan. ‘A witness swears but to what he hath heard or seen…but a jury-man swears to what he can infer and conclude from the testimony of such witnesses by the act and force of his understanding…’
Vaughan’s assertion of a power to clamp down on oppressive judges, made in a ruling known to lawyers ever since as Bushel’s Case, was soon being complemented by political changes on a broader front. Less than two decades after he handed down his judgment, the ‘Glorious Revolution’ of 1689 reasserted parliamentary control of the monarchy, finally putting paid to its ancient claims of absolute prerogatives. In the new climate, the judicial advantages previously guaranteed to the executive were steadily eroded. Accused traitors, and then felons in general, were given the right to call witnesses in the early 1700s and judges increasingly permitted prisoners to instruct counsel over the next few decades.
The consequences for criminal justice would be dramatic. Trials had for several centuries been free-for-alls, at which lawyers appeared only to represent the state and only in the most serious cases, while judges, jurors and defendants argued amongst themselves in the large majority. But the arrival of defence counsel, which was complemented by the professionalization of prosecution, turned trials into structured disputes over the meaning of legal history – or ‘precedent’, as the lawyers called it. As they cited from their tomes and cross-referred to each other’s cases, countless rules and conclusions were soon being firmed up. By the middle of the eighteenth century, the customary suspicion of certain types of evidence such as hearsay was being formalized into rules of admissibility and exclusion. Towards its end, an even more far-reaching change took place as the presumption of innocence, previously little more than an aspiration, was promoted to axiom.
The jury was simultaneously propelled into the moral stratosphere. The myth of justice that had been gripping England since the time of Walter Raleigh had found its institutional hero: a body of men so brave it would go to jail for the underdog, and so selfless it would forgo its collective chamber pot for love of liberty. There would always be some controversialists prepared to point out that jurors slept on the job and hanged children as well, but the most influential legal writer of the eighteenth century, William Blackstone, was not one of them. In his mammoth compilation of the criminal law, still annually updated and cited in England’s courts, he assured readers during the 1760s that judgment by twelve men ‘indifferently chosen, and superior to all suspicion’ was the ‘sacred bulwark’ of the nation’s liberties.
The system was also laying down deep roots far beyond Britain. King James had guaranteed jury trials in 1606 to the first emigrants to Virginia, and although settlers’ leaders would try nevertheless to monopolize power with magistrates’ courts, juries soon became commonplace across colonial America. William Penn himself crossed the Atlantic twelve years after his 1670 trial and the founding laws of Pennsylvania, the province that he established in honour of his father, promised that twelve men would have ‘the final judgment’ in every case. By 1735, when a New York jury acquitted a printer called John Peter Zenger in the teeth of a judge’s instructions that the truth of his words could be no defence to a charge of sedition, American jurors were flexing their muscles at least as much as their English counterparts. They were also idealized no less than in England. The colonists read Blackstone and devoured the anti-executive arguments of Edward Coke, harbouring hopes and grievances that were virtually defined by England’s political struggles, and the right to an open jury trial was close to the top of their wish list. It was the only guarantee contained in all twelve state constitutions that existed in 1776, while the federal constitution that was framed at Philadelphia eleven years later envisaged that the US government would suspend access to courts only in the event of ‘rebellion or invasion’.
There were, however, less exalted reasons for the popularity of juries. Trials simply offered a lot to see. Courts were becoming more packed than ever, regularly punctuated by fights and occasionally the scene of gunshots and murders.
(#litres_trial_promo) Entire communities could be agitated: perhaps most literally when the weight of spectators at East Grinstead in 1684 caused the floor to collapse, and perhaps most metaphorically during the notorious witchcraft prosecutions of Salem eight years later.
(#litres_trial_promo) Attendance also became an essential part of any respectable person’s education during the eighteenth century, as edifying as a trip to the local condemned cells or lunatic asylum. Foreign travellers, hoping to glean lessons about English liberty, became regulars. Gentlemen in the public gallery, eager to contribute to the increasingly legalistic debates, would sometimes interrupt to identify defects in the indictment and advance points in favour of a defendant.
The Old Bailey retained its particular cachet, with one observer complaining by 1786 that ‘no one who hath any real business to do can have access’, but provincial sittings, or assizes, offered a show that was in many ways even more fascinating. Judges would roll into town twice each year, solemn as sphinxes in their crimson robes and longbottomed wigs and preceded by up to twenty trumpeters and javelin-wielding officials. As they were wined and dined by the ruddy squires of the county, surrounding dungeons trembled into life. Prisoners clanked their way to the courthouse through the night, and after a sermon and swearing-in ceremony the next morning, the jurors would get to work on their case load – typically deciding within minutes whether to acquit or convict. Anyone found guilty of murder would receive an immediate sentence of death, but other convicts would be holed up to await the assizes’ grand finale. The judge would, on the appointed day of judgment, work his way up the ladder of wickedness and close the proceedings with one of two props. If he was going to leave with no blood on his hands, he would pull on a pair of white gloves. Rather more often, he would deliver his final sentences wearing the black cap of death.
The media mirrored and magnified the appeal of such occasions. Literacy had been sufficiently prevalent to generate junk journalism since the late sixteenth century, and by the eighteenth, true-crime pamphlets were routinely vying for public attention alongside other staples of the hack printer: recent comets, monstrous births, and so on. Continental writers, excluded from courtrooms and usually subject to censorship, could sometimes exploit the sexual scandals that were played out in ecclesiastical courts but were otherwise restricted to writing about the crime that preceded a trial and the punishment that followed it. Their British counterparts faced no such obstacles.
A twenty-four-page booklet had set the ball rolling in August 1566 with an account of the prosecution of Agnes Waterhouse – condemned for witchery with a diabolical dog and a white cat called Satan – and trial reports were soon a fixture on the pedlar’s cart. The cut-and-thrust of cross-examination usually offered ready-made dialogue. Even when absent the drama could be gripping: a report from the early seventeenth century, for example, told how the blanched corpses of three children began to bleed reproachfully when their murderous father obeyed a judge’s order to call out their name. One popular 1606 story neatly combined speech and silence, telling of a poor little dumb girl who had managed to croak accusingly at the man who had torn out her tongue notwithstanding that the jurors could ‘not see so much as [a] stumpe’ in her mouth. The evidence evidently spoke no less eloquently: the defendant went to the gallows.
By the 1670s, suitably salacious and brutal trials were being reported within days of a verdict. Eager readers in 1698 might have chosen to consider the depravity of Captain Edward Rigby, pilloried for attempted sodomy after picking up William Minton at a firework display in St James’s Park. Rigby pleaded guilty in the hope of a quiet life, but the court itself ordered that its proceedings be published. All literate England could soon pay to recoil from the news that he had ‘put his Privy Member Erected into Minton’s Hand; kist him, and put his Tongue into Minton’s Mouth’ before expounding on the antiquity of anal intercourse and placing a ‘Finger to [his] Fundament’. There were salutary lessons to suit every taste. Someone disinclined to weigh the wages of sin might, for example, have preferred to contemplate the quality of mercy – perhaps by pondering the luck of Mary Price, acquitted of bestiality in 1704 notwithstanding her housemate’s claims to have watched through the floorboards as she copulated with a dog.
But although jury trials were offering much to mull over by the eighteenth century, another aspect of criminal justice was still far more visible: the punishments that followed them. Tattooed and maimed convicts stalked the streets of every city, while lesser deviants sat in stocks and dangled from pillories, braving rotting animals and vegetables if they were lucky and storms of rocks if they were not. The displays were a feature of the landscape from Nuremberg to New York, but they were becoming especially impressive in England. Although a 1718 statute providing for transportation to the colonies removed plenty of convicts from the public gaze, public mutilations continued apace and the number of capital offences also soared – from about fifty in 1688 to well over two hundred in 1810. Few villages lacked for a whipping post, while executions could turn the humblest provincial town into a fairground, drawing thousands of visitors and pumping a fortune into the local economy.
London hosted the grandest spectacle of all, spewing out capital offenders from Newgate every six weeks for transportation across the capital to the Tyburn gallows. The procession had grown increasingly animated during the seventeenth century, and by the 1720s it was tumultuous indeed. The condemned travelled in open carts, noosed and astride their own coffins, as church bells tolled and crowds cheered them on their way. They wore anything they chose – perhaps velvet, scarlet, and silk with a white cockade to protest their innocence, perhaps a simple burial shroud to acknowledge their guilt – while high-spirited onlookers handed up tankards of ale, asking only that the prisoners buy a round on the way back. The jollity reached a climax under the triangular beams of Tyburn. Convicts who spoke with grace or humour received roars of approbation, while the surly and the sullen were booed and pelted. When the bodies were finally ‘turned off’ and the souls ‘launched into eternity’, to use the clichés of the day, chaos would erupt. While acquaintances of the dying tried to shorten their agonies by leaping for the dribbling, jerking legs, hangmen auctioned their clothes and emissaries from London’s surgeons’ colleges hopped from rope to rope in the hope of scavenging an unwanted cadaver.
The commotion, macabre even by the standards of the time, regularly attracted tens of thousands of spectators and exercised a fascination that spanned class and nationality. César de Saussure, a young Swiss gentleman who whiled away several months in London during the 1720s, was impressed enough to describe it at length in a letter to his mother. ‘You see most amusing scenes between the people who do not like the bodies to be cut up and the messengers the surgeons have sent for the bodies,’ he enthused. ‘Blows are given and returned before they can be got away, and sometimes in the turmoil the bodies are quickly removed and buried.’
Amusing it may have been, but the increasing frequency and intensifying violence of executions, at a time when juries were being sanctified and courtrooms were formulating rigid rules to guarantee fairness, had a peculiarly paradoxical effect. Trials became almost perverse rituals of cruelty and mercy, at which the dignity afforded the defendant resembled nothing so much as the head start given a fox. Whether a suspect lived or died was in many ways less important than that the chase proceeded by the rules. The responsibility for punishment was meanwhile shuffled around court until it belonged to everyone and no one, and all were free to lament the fate of the person they were killing. At a time when English and American juries were becoming celebrated for their ‘pious perjury’ – undervaluing stolen goods so as to spare petty thieves the gallows – they continued to convict most capital offenders (a full two-thirds in England, of whom 90 per cent in London were under twenty-one). The role played by judges was no more coherent. While they typically warned juries of the awful consequences of leniency, they simultaneously repaired the damage behind the scenes – recommending so many pardons that three out of four English death sentences were being commuted by the end of the eighteenth century.
It all made for emotional tensions aplenty. After Chief Justice Ryder had to deal with a young woman charged with killing her 6-month-old baby in 1754, he confided to his diary that he had been so affected by his own speech to the jurors ‘that the tears were gushing out several times against my will. It was discerned by all the company – which was large – and a lady gave me her handkerchief dipped in lavender water to help me.’ He nevertheless encouraged the jury to put aside any doubts about the defendant’s sanity, and remained sufficiently stoical to sentence her to death, with an instruction that her body be dissected for the benefit of medical science. Even more lachrymose was the 1777 forgery trial of Dr William Dodd. ‘The judges, the jury, the counsel, the spectators, all the world was bathed in tears,’ observed a bemused German visitor. Horrid though it sounds, the jury convicted after ten minutes and Dodd also hanged without a pardon.
For much of the eighteenth century, courtroom and gallows seemed to complement each other. Foreign visitors to England were repeatedly struck by the contrast between the safeguards of its trials and the brutality of its punishments, but in an era of Georgian gentility, when sentimentality and rigour were different sides of the same moral coin, the English rarely seemed to perceive a contradiction. Just as the pamphleteers began their accounts with the foul deed and ended with its just deserts, courtroom spectators were generally no less eager to see the deadly denouements. But towards the century’s end, the balance finally began to tilt away from executions, and would continue to tip for several more decades. The reason was not that the courtroom contest became even more thrilling. It was that punishments began literally to disappear.
Eighteenth-century thinkers, convinced that sufficiently rational laws could facilitate progress and possibly even perfection, were always fascinated by crime and punishment, and as each escalated in tandem they could not but wonder what was going wrong. Some argued that the brutality was counter-productive – pointing out, for example, that marking convicts by clipping their ears and slitting their nostrils was not likely to assist their employment prospects. Equally common, if more abstruse, was the belief that penalties had become decoupled from the crimes for which they were imposed, and that the symbolic links needed tightening. Thomas Jefferson was among those who took such a view, and in 1778 he drafted a law for Virginia that would have poisoned poisoners and castrated rapists. The American also believed, for reasons which are sadly not recorded, that it was appropriate to drill half-inch holes through the noses of female polygamists. His attempt to rationalize Virginia law was never enacted.
Capital punishment, which almost everyone agreed was not doing enough to deter crime, inspired particular concern. Some argued that its imposition was so capricious as to be useless, and gazed admiringly towards the proverbially enlightened despotisms of Russia and the Austro-Hungarian Empire, where it had just been abolished. More common was the belief that executions were inherently sound, and that a tad more terror would repair such defects as the system might possess. Britain’s Parliament in 1752 accordingly authorized judges to order the posthumous tarring and chaining of criminals’ corpses, as and when they thought that that would frighten more people for longer. Others envisaged even more dramatic ways to maximize the fear. James Boswell proposed in 1783 that convicts should be hanged without hoods ‘that the distortions may be seen’. In an ideal world, he argued, criminals would have their heads publicly smashed open with an iron mallet, before being jugulated with a machete and hacked apart with an axe.
But at the same time, there were others who felt that the public displays of aggression, no matter how well intentioned, were in fact doing more harm than good. As far back as 1725, one writer had warned that hangings were attended disproportionately by drunks, prostitutes, and pickpockets, and that potential criminals were enjoying the killings far too much to be deterred by them. Over subsequent decades, crowds had become increasingly violent, frequently trying to free prisoners and often launching assaults, up to and including murder, on the executioners and surgeons present. The phenomenon, seen across Europe, inspired British legislators in 1783 to replace the Tyburn processions with stationary executions outside Newgate. But the volatility also gave rise to far more radical proposals for reform. Tinkering with the spectacle was no solution to rising crime, argued some – because publicity itself was the problem.
The reasoning had first been set out in 1751. Henry Fielding, a London magistrate as well as the author of classics such as Tom Jones, had set out to explore why London seemed to be experiencing an upsurge in robberies. He assumed, like almost everyone else, that inefficient penalties were the primary cause; but instead of suggesting that their violence be increased, he proposed that it be hidden. According to Fielding, it was the delay between trial and execution that created pity for capital offenders, and it was the opportunity granted those offenders to address the gallows crowd that turned them into victims or heroes. Swiftness and secrecy were therefore essential. Prisoners should be hanged in the yard of the court in which they had been tried, within four days of conviction, watched in silence by the robed and bewigged judges who had sentenced them. ‘Nothing…can be imagined more terrible,’ he urged – and writer that he was, he knew that it was imagination rather than sight that produced fear. Shakespeare’s Macbeth served to illustrate the point. ‘A murder behind the scenes’, he explained, ‘will affect the audience with greater terror than if it was acted before their eyes.’
(#litres_trial_promo)
Fielding’s proposal was a little too avant-garde to be enacted, but it would influence legislators for the next century and heralded an era in which power would be expressed as much by concealment as by display. Branding irons, whipping posts, and pillories were being abandoned across the Western world by the late eighteenth century. Do-gooders, inspired by the hope of making convicts work, pray, and see the error of their ways, would soon perfect a new kind of prison – the penitentiary or reformatory – which made its debut in the eastern United States at the turn of the century. The causes driving the change varied considerably from country to country (a major impetus in Britain was the American Revolution of 1776, which robbed the country of its largest penal dustbin overnight), but the shift was seen throughout Europe and America. And during the nineteenth century it began to fuel demands to conceal the most visible punitive spectacle of all – the public execution.
Those who campaigned most strongly for reform were the politicians who most favoured the death penalty – because they feared that the unruliness and unpleasantness of the public ritual was beginning to threaten its continued existence. For precisely opposite reasons, resistance was led by abolitionists – men like Samuel Bowne, a Quaker Assemblyman in New York, who argued against the concealment of public throttlings in 1834 on the grounds that popular disgust would soon lead ‘to the entire abolition of capital punishment’. And the supporters of death were soon making the running. Their first success came with a ban on public executions in Rhode Island in 1833 – followed within two years by similar laws in Pennsylvania, New York, New Jersey, and Massachusetts. British opponents of capital punishment fought a similar battle to keep the horror visible, but they too were destined to be outmanoeuvred. On 29 May 1868, three days after one last hanging – before a seething crowd that yelled ‘body-snatcher’ at the executioner as he cut down the corpse – supporters of the death penalty were able finally to hide it behind prison walls.
Public hangings very probably originated as a sacrificial rite and their concealment in many ways restored the mystery that a century of rationalism had threatened to dispel. For the most immediate effect, just as abolitionists had feared, was to stabilize an institution that had at certain points in the early 1800s begun to seem very wobbly indeed. British hangmen would continue secretly to snap necks for another century. In the United States, where men and women are still poisoned and gassed in hidden chambers, popular support for the death penalty may well be stronger than it was two hundred years ago.
But the change also had another consequence – for as the punishments that had exemplified Western justice for centuries vanished, criminal trials assumed a more prominent position than ever before. New York produced America’s first true-crime journal, the National Police Gazette, in 1845 – a decade after its legislature did away with public hangings – while the Illustrated Police News first hit London’s news-stands in 1864, just four years before Britain’s Parliament followed suit. A similar shift was seen elsewhere in Europe. In Prussia, the first German state to end public executions, the same statute that relocated the beheadings to prison yards in 1851 opened the kingdom’s trials to the public. Equivalent laws did the same throughout the rest of Germany over the next three decades, and by the end of the century day trips to court had become a popular pastime among middle-class families across the country.
In France, the story was a little different. The legal reforms that followed the Revolution of 1789 threw its courts open to the public and guaranteed defendants a right to counsel. They also gave ordinary citizens a role in judging criminal cases, creating a form of the jury that spread, through cultural influence and Napoleonic campaigns, from Madrid to Moscow over the next three-quarters of a century. The country bucked the penal trend by continuing to stage public executions right up to 1939, later than any other country in the Western world, but its experience of publicity also exemplified the growing significance of the criminal trial.
Over the course of the eighteenth century, France’s liberal thinkers had developed a deep admiration for the transparency of English criminal justice. ‘In England no trial is secret,’ Voltaire had explained in an impassioned attack on the inquisitorial system in 1762, ‘because the punishment of crime is meant to be a lesson to the public…and not vengeance for one person. Witnesses testify in open court and any trial of interest is reported in the newspapers.’ Attitudes towards the jury itself had always been considerably more equivocal however, and French jurists were very soon having second thoughts about its wisdom.
In 1804, soundings were taken from seventy-five courts across the nation as to whether juries should be retained. The Anglophilia of men like Voltaire was a thing of the past – not least, because France was at war with Britain – and the fifty-two jurisdictions that replied were split precisely in half. One court that expressed an especially firm non was that of Doubs. Jury service, argued its judges, was a task that could appeal only to citizens as primitive as those of England. ‘At the theatre, the Englishman only cares for ghosts, lunatics, dreadful criminals and drawnout murders; he scurries to animal fights, and probably regrets the passing of gladiatorial contests,’ they observed. ‘Who can tell if he does not seek the functions of a juror for the pleasure of watching a criminal struggling with his conscience, with the death that awaits him? The Frenchman, on the contrary, is delicate in all his tastes; he flees from any sight which could disagreeably awaken his sensitivity; could he take any pleasure in wielding the bleeding sword of justice?’
The assessment was an audacious one. Frenchmen had just guillotined thousands of their compatriots, and possessed such enthusiasm for the bleeding sword of justice that they would watch its blade rise and fall in public for another 135 years. The sight of squirming criminals was also doing little to repulse them: the world’s first newspaper dedicated exclusively to court reporting, the Gazette des tribunaux, was launched within months of the 1791 law that had thrown open the doors of France’s trials. But the judges of Doubs were chauvinistic rather than simply wrong. Prurience had always been potential in English trials, even if its source had been publicity rather than juries. And as France moved from inquisitorial secrecy to routine openness, it would take to the voyeuristic pleasures of the courtroom with delight.
France’s cities, like others throughout mainland Europe, were soon making strenuous efforts not merely to accommodate a growing popular interest in courtrooms, but to promote it. ‘Palaces of Justice’ were built across the country during the nineteenth century: newfangled monuments to open justice, packed to their triforia with crucifixes, statuary, and all the trappings of tradition that its absence could demand. As congregants flocked in, it became increasingly common to issue tickets in order that the classes and sexes could be properly segregated – a development simultaneously seen in England – and the trials of lowlifes were soon pulling in the haut monde. The December 1869 prosecution of Jean-Baptiste Troppmann for multiple murder inspired particular interest. His case had been intriguing Parisians from the moment that the six victims had been laid out behind plate glass at the city morgue three months before, and more than twenty thousand applications were made for admission passes. Only several hundred were lucky enough to make it into the trial chamber, a magnificent judicial temple inaugurated just a year before, but few who did so would have been disappointed. For three days they trained opera glasses on the dock, perhaps picking up clues from Troppmann’s physiognomy, and pondered the table that dominated the room – spread with bloody garments, blades, and a jar swimming with the stomach contents of one of the deceased. Aristocrats, socialites and workers attended in force, and so many women were present that Le Petit journal marvelled how ‘strange’ it was that ladies ‘raised in velvets, lace, and silk’ should display such ‘mad unbridled passion…for the coarse details and repugnant debates’ of the case.
That particular concern was widely shared. When Adelaide Bartlett stood trial at the Old Bailey in 1886 for chloroforming her husband – in a case involving a love triangle and liberal condom use – the judge publicly condemned the relish of women in the public gallery for evidence that he and the jurors could hear only with shame. By 1896 one French doctor was expressing not only distaste, but fear. The libertines of fin-desiècle France had developed something of a vogue for throwing acid into their lovers’ faces, and Paul Aubry proposed that even reading about a vitrioleuse might be enough to launch the female reader (who was ‘often not very intelligent’) on some passionate mischief of her own. ‘What else does she need to excite [her] imagination?’ he asked rhetorically. ‘It is easy to throw vitriol at someone [and] one is sure to be acquitted and to be the subject of gossip for forty-eight hours.’
But whatever the other moral consequences of the intensifying courtroom drama, the Troppmann trial suggested that the weaker sex was made of rather sterner stuff than their would-be protectors realized. Following the defendant’s conviction, several distinguished Parisiennes wrote to Le Figaro to complain that the newspaper’s correspondent had not acknowledged their presence at court. René de Pont-Just, though as suspicious of female spectators as the next man, was at least capable of irony. He drily explained that the courtroom audience had included ‘both ladies and women’ and that he had held his tongue for fear of confusing the danses with the femmes.
Jury trial had come a long way since a desperate murderer called Alice had squealed on five of her co-accused at Westminster in 1220. Just how far was marked, in ways both geographic and historical, by the 1880 publication of Fyodor Dostoyevsky’s The Brothers Karamazov. Juries had been introduced to Russia fourteen years before and the novel concludes with the prosecution of Dmitri Karamazov for the murder of his father, in a courtroom that would have been familiar to readers from Paris to San Francisco. Tickets have been snapped up by luminaries from miles around, lorgnettes twinkle in the audience, and counsel joust across a table stacked with a bloodied silk dressing gown, a blood-stiffened handkerchief, a pistol, a pestle, and a slender pink ribbon. The spectacle, as compelling as it is mysterious, somehow implicates everyone present – and the shared shame is spelled out when Dmitri’s brother, Ivan, deliriously characterizes the spectators’ lust for bread and circuses as equal to any act of parricide.
Ivan Karamazov had very personal reasons for his distress, but it was shared by right-thinking folk everywhere. French commentators and English hacks rarely reported a trial without tut-tutting at the onlookers. If it was not the fact of their femininity, it might be their eagerness to applaud, their willingness to bring food to court, or their morbid curiosity – attacked, of course, in articles that went on to describe every twitch and tremor of the defendant.
The concerns all echoed those that had been expressed not so long before about public executions. But the bread and circuses of the courtroom constituted a very different diversion from the gallows spectacle. Sobs, applause, and whispers had replaced the howls of hatred. Packed lunches had taken the place of Tyburn’s gin-soaked procession. And although the verdict in a high-profile case could still bring traffic to a halt – gridlocking the entire West End of London in the case of one murder acquittal in 1907 – crowds now preferred queueing to rioting. A decision not to issue tickets might cause the lines to form long before sunrise, and the crown might over-flow far beyond the court itself, but spectators always knew their place. When Dr Hawley Harvey Crippen was arraigned for his wife’s murder in 1910 – at a trial which saw a shred of her skin passed around on a dish – a multitude of the ticketless swarmed outside the Old Bailey until police steered them into an empty court. Only after several hours of picnicking and chattering did they realize that they had been duped – at which point they drifted home.
The jury trial had further to travel, but by the turn of the twentieth century it had come of age. Born from magical rituals and only tempered by reason, it had always enacted the difference between right and wrong as much as it had decided it. And with the end of public executions, it had become the only judicial show in town: a touch of evil for an era that no longer thought it seemly for crowds to jump at the legs of a dying man.
4 The Witch Trial (#ulink_8cabaf44-542a-5bbb-8365-b07a15b3beb8)
I have to fight against countless subtleties in which the Court is likely to lose itself. And in the end, out of nothing at all, an enormous fabric of guilt will be conjured up.
FRANZ KAFKA, The Trial
By the fifteenth century, two very different models of criminal justice had established themselves in Europe. On the continent, judges asserted the wisdom of the Romans and the authority of canonical law – and the right to investigate any crime they detected. In England, on the other hand, kings had already delegated considerable responsibility to ordinary men, whose role was only to assess the complaints and defences of people who came before them. The jurists of Europe were honing their inquiries to logical perfection; the jurors of England were entirely unversed in legal theory and so unlikely to be literate that evidence was invariably spoken or shown to them. The history of the witch trials, a saga that lasted two centuries and claimed the lives of between sixty and a hundred thousand people, would encapsulate the differences between the systems. It would begin in the hushed monasteries and torture chambers of central Europe, and would end amidst the high drama of Salem. Subtle doctrines of theology would transform superstitions into denunciations, and the secrecy of the inquisitorial process would generate a vicious cycle of confession and execution. But the publicity of jury trial would produce the most spectacular prosecutions of all.
Medieval Christianity had an instinctive distrust of anyone who dabbled with the supernatural. The Book of Exodus warned against ‘suffer[ing] a witch to live’, while Leviticus recommended the stoning to death of anyone with ‘a familiar spirit’, and Christian rulers everywhere were paying lip service to the rules by the end of the first millennium. But anxious though the Church was to kill sorcerers in theory, the practical shortcomings of Dark Age logic always made it hard to define them. Without firm theories of cause and effect, it was impossible to pin down the relationship between a curse and a consequence. The significance of healing was no easier to understand; just as a potion that worked might be magic, a failed doctor might as well be a magician. To confuse matters further, orthodoxy insisted for centuries that no one but God could bend or suspend the laws of the cosmos. Ever since St Augustine had explained in the fifth century AD, that only He was capable of turning men into beasts and birds, Catholic theologians had taught that sorcery was either ineffective or blessed. The idea that people could actually fly and work evil magic was therefore, in the words of a tenth-century canon, an ‘error of the pagans’ that wrongly imagined ‘some divine power other than the one God’
The late medieval Church consequently had a relatively relaxed attitude towards the forces of darkness. Some demons certainly seemed to be up to no good – flitting through the night as incubi or succubi in search of casual sex perhaps, or cleaning up at a dice table before exiting with a sulphurous whoosh – but chroniclers knew of others far more benign. In the early thirteenth century, an English monk called Roger of Wendover told how Satan had once helped a nun fight off a rapist. Caesarius of Heisterbach reported that he had even lent support to the Church’s war on heresy. The Bishop of Besançon had invoked him in order to ask how two troublesome preachers were able to walk on water and pass through flames, and the Devil had confided that they had infernal charms sewn into their armpits. When the men declined to disclose what lay under their flesh they were flayed by force and burned at the stake. The powers of hell, used wisely, could be extremely helpful indeed.
But at the very same time that both men were writing, the Church’s attitude to Satan was undergoing profound change. Catholicism had been at war since 1095, when Pope Urban II had blessed the first crusaders’ attempt to capture the Holy Land; and since 1208, when Innocent III launched his attack on the Cathar heretics, its struggle had become one of self-definition as much as survival. The very idea of Catholicism was being challenged – and in the name of combating a heresy that overestimated evil, the Church would itself promote Lucifer from an inferior demon to the Prince of Darkness. The Cathar belief that Satan was slugging it out with God and had the upper hand on earth was already being caricatured as a celebration of wickedness rather than an explanation of it. Church propagandists were asserting that heretics worshipped their savage deity in person, generally by kissing his anus, and the mischievous demons of picaresque tradition were giving ground to diabolical creatures of a far more sinister hue. The stranger at the tavern described by Thomas de Cantimpré in the mid thirteenth century was not a gambler with the luck of the Devil but someone who bought a man’s soul for a drink – and unsheathed his talons at closing time to call in his due. By the late 1300s, macabre stories were telling of men who begged from their deathbeds to have their right hand amputated, forced in extremis to reveal that the limb was pledged to Satan and anxious not to die with the debt unredeemed. Similar stories would one day attach themselves to the exploits of a sixteenth-century conman called Dr Johann Faust – but the pact attributed to his literary reincarnation was already being drafted.
The changing superstitions were transformed into doctrine at the end of the thirteenth century when a Dominican monk called Thomas Aquinas subjected demons – along with the rest of creation – to detailed analysis. The scholar, concerned to establish a rational basis for God’s existence in an intellectual climate that demanded proof for every proposition, would establish an orthodoxy that would hold for three more centuries, and his examination of the spiritual world generated some especially alarming conclusions. While recognizing that some people thought demons were illusory, he scrutinized the evidence and showed that they were in fact ubiquitous – and dangerous. Incubi and succubi, for example, were not just cruising whores, but diabolical transsexuals who reaped sperm from men and sowed it into women, generating giants in the process. Although that specific hazard was something from which Aquinas claimed miraculous immunity,
(#litres_trial_promo) less sanctified individuals faced serious risks. Demons were so malicious that they sought pleasure not for its own sake but only to lead humans to perdition. Magicians were especially liable to be outsmarted by creatures of the netherworld. Indeed, the mere act of invoking a demon meant that a sorcerer was making a deal with death and a pact with hell.
The stock of ritual magic, once the preserve of only the wisest Christians, was plummeting, and a series of events that occurred south of Paris in 1323 offered a vivid indication of how far it was to fall. They began when shepherds driving their flocks past a crossroads noticed two long straws sticking out of the ground and heard a distant miaow. Local inquisitors, summoned to the scene, began digging. It was not long before their spades hit a chest containing a coal-black cat and several vials of consecrated oil and holy water. Inquiries among local carpenters led to the arrest of one Jean Prévost, who explained that he had been trying to assist a group of Cistercian monks from the nearby abbey. They had hired him, along with a magician called Jean Persant, to help recover the abbot’s stolen treasury and the plan had been to disinter the cat after three days, skin it alive, make three thongs from its hide, and consume the contents of its stomach. Prévost and Persant anticipated that a demon called Berich would then point them in the direction of the thief. The scheme would have raised few eyebrows just a century earlier, but by the 1320s it was looking distinctly outré. The monks were collectively degraded and condemned to lifetime incarceration, while the defendants were burned to ashes. Persant suffered the additional discomfort of having the cat tied around his neck at the stake.
Similar prosecutions proliferated throughout the fourteenth century, but it was reverberations from the longstanding campaigns against heresy in southern Europe and Germany that finally gave the fears the distinctive shape that is nowadays associated with the witch-hunts. The papal Inquisition, though successful in shattering Catharism, had merely scattered many of its most fervent adherents, and as refugees had poured into Germany and the Savoy, a domino topple of dissent had begun that would set off anti-Catholic movements for centuries. Officials increasingly responded by linking their concerns about magical pacts with the allegations of sexual diabolism that the Church had long been levelling against its enemies, and during the mid fifteenth century all the cross-pollination finally bore fruit. In a series of trials across Burgundy and the Savoy, tortured defendants began to confess to a form of mischief so distinctive as to amount to an entirely new offence. They had, they now admitted, flown on beasts and greased sticks to huge assemblies at which Satan had manifested himself in the form of a lascivious creature such as a goat, dog, or monkey. They had repeatedly kissed his rear end. They had also prostituted themselves to demons, raised storms, cast spells against their neighbours, and performed acts against nature until cockcrow. It was a crime whose time had come.
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Sadakat Kadri
In an extraordinary history of the criminal trial, Sadakat Kadri shows with wit, legal insight and a travel writer’s eye for detail, how the irrationality of the past lives on in the legal systems of the present. A bold and brilliant debut from a prize-winning writer.‘The Trial’ spans a vast distance in time, opening in the dread silence of the Egyptian Hall of the Dead and ending with the melodramas and hubbub of the 21st-century trial circus. Reconciliation and vengeance, secrecy and spectacle, superstition and reason all intertwine continually. The book crosses from the marbled courtrooms of Athens through the ordeal pits of Anglo-Saxon England, past the torture chambers of the Inquisition to the judicial theatres of 17th-century Salem, and from 1930s Moscow and post-war Nuremberg to the virtual courtrooms of modern Hollywood.Kadri shows throughout how the trial has always been concerned with doing more than guaranteeing fairness and holding human beings to account for their deliberate crimes. He recounts how insentient and irrational defendants from caterpillars to corpses were once summonsed to court, before being exiled for their failure to attend or sentenced to die again – and argues that the same urge to punish lives on in today's trials of children and the mentally ill. But although Justice’s sword has always been double-edged – as ready to destroy a community’s enemies as to defend its dreams of due process – the judicial contest also operates to enshrine some of the western world’s most cherished values. The show trials of Stalin's Soviet Union were shams, but Guantanamo Bay and Abu Ghraib are a reminder that a lack of a trial is equally unjust, and at a time when our constitutional landscape seems to be melting away, an appreciation of the criminal courtroom’s history is more necessary than ever. As the Labour government launches an almost annual attempt to truncate trial by jury, and as authorities on both sides of the Atlantic are indefinitely detaining people in the name of an endless war on terror, ‘The Trial’ could hardly be more timely.Note that it has not been possible to include the same picture content that appeared in the original print version.
The Trial
A History from Socrates to O.J. Simpson
Sadakat Kadri
For my mum and dad, with love.
Contents
Cover Page (#uef8accc1-4701-58e1-a982-5e2e0c5d5d62)
Title Page (#ud38a62f3-0f50-5368-9bf8-fe3ccbf42f6d)
Dedication (#u2da4f0a1-ddb4-585e-a4a1-f3089af7a7f0)
Introduction (#ude911736-da39-5c20-9772-a3db93cbb97d)
1 From Eden to Ordeals (#ufcd1e829-c26a-56a6-bf5f-55ad03e508d9)
2 The Inquisition (#ue57f27dd-688f-5ba5-8b94-8a82ff712c97)
3 The Jury Trial (1) (#u69f9e794-5d11-50e7-96bd-c1b8892b8b4d)
4 The Witch Trial (#u3b2f0636-b6da-524e-b73e-71d8596e4951)
5 The Trials of Animals, Corpses, and Things (#litres_trial_promo)
6 The Moscow Show Trials (#litres_trial_promo)
7 The War Crimes Trial (#litres_trial_promo)
8 The Jury Trial (2): A Theatre of Justice (#litres_trial_promo)
Conclusion (#litres_trial_promo)
Acknowledgements (#litres_trial_promo)
Further Reading (#litres_trial_promo)
Notes (#litres_trial_promo)
Index (#litres_trial_promo)
P.S. (#litres_trial_promo)
About the author (#litres_trial_promo)
The Dream of Justice (#litres_trial_promo)
LIFE at a Glance (#litres_trial_promo)
A Writing Life (#litres_trial_promo)
About the book (#litres_trial_promo)
The Difference Between God and Lawyers (#litres_trial_promo)
Read on (#litres_trial_promo)
Sadakat Kadri’s Suggested Further Reading (#litres_trial_promo)
Films to Watch (#litres_trial_promo)
The Web Detective (#litres_trial_promo)
About the Author (#litres_trial_promo)
Praise (#litres_trial_promo)
By the same author (#litres_trial_promo)
Copyright (#litres_trial_promo)
About the Publisher (#litres_trial_promo)
Introduction (#ulink_ff6d6bd6-9f75-57fb-b749-f59e86429cb7)
In August 1792, as the French Revolution hurtled towards its years of Terror, Paris was seized by panic. Armies from Prussia and Austria were marching on the capital to restore King Louis XVI to the throne, and radicals had responded by slaughtering several hundred of his Swiss guards and placing the royal household under arrest. To the sound of boots and drums and bells, the capital mobilized, aware that the commander of the invading forces had sworn vengeance on every Parisian if the king’s person was violated. When the Germans reached Verdun, just a hundred miles east, the possibility of a bloodbath became imminent. As fear mounted, the pamphleteers and propagandists of the Revolution identified a threat even closer to home than the Prussians: the thousand or so royalists and clerics who were being held in the municipal jails. ‘You have traitors in your bosom,’ warned Danton. ‘Without them the fight would have been soon over.’ ‘The prisons are full of conspirators,’ thundered the Orateur du peuple. ‘The first battle we shall fight will be inside the walls of Paris.’ The prescription of Marat was most precise of all. ‘The people’s duty,’ he wrote, was to ‘run [the traitors] through with a sword’.
It soon became clear that many Parisians were inclined to agree. As a train of cabs carrying some twenty captive priests inched its way through the seething capital on 2 September, one of the passengers, deluded or desperate, lashed out with a stick. It was a bad move. The man struck by his assault leapt onto the carriage step, thrust a sabre three times through its open door, and raised the glistening blade to the roaring crowd. The passengers in the cab were cut to pieces and at the convoy’s destination, a prison called the Abbaye, a mob broke down the doors and turned pikes and bayonets onto those who had survived. The murders set off a holocaust. Some twelve hundred prisoners were killed over the next four days and nights, despatched inside prisons that echoed with their screams and stacked high on streets and bridges that ran with their blood. It was the deadliest single atrocity in a Revolution that never lacked for violence – but it was distinguished by more than its scale. Almost as soon as it had begun, the Parisian authorities sent an urgent instruction to those carrying it out. The people’s enemies were not to be killed so quickly, it warned. They had to be tried first.
One of those who faced the revolutionary music was army officer François Jourgniac de Saint-Méard, who was taken from his cell in the Abbaye during the early hours of 4 September and led into a darkened chamber. About a dozen men were present. Some stood around in bloody shirts and aprons, machetes hanging from their waists; others dozed on the sidelines. Behind a bench at the far end, his gaunt features illuminated by the smoky flames of two torches, was the tall, dark, and tubercular figure of Stanislas Maillard, a 29-year-old veteran of the storming of the Bastille who had assumed the status of tribunal president. Saint-Méard was detained behind crossed sabres as a soused sansculotte handed up a reference for the 70-year-old man whose trial was reaching its conclusion. Maillard waved it aside. ‘They are useless, these appeals for traitors,’ he grumbled. ‘My hands are washed of it; take [him] away.’ As the old man was dragged to the back of the room, he struggled furiously with his captors. ‘It is frightful!’ he protested. ‘Your judgment is murder!’ Maillard scribbled into his files as the doors were opened onto the street. Men and women outside, skulking like dogs around an abattoir, suddenly galvanized into a pack. It swallowed its prey with a great roar. Maillard continued to leaf through his papers. ‘Another!’ he called.
Saint-Méard’s guards tugged him to the centre of the room. Shadows leapt as defendant and judges peered at each other across a table littered with pipes, inkstands, and half-drained bottles of liquor. Why had he been arrested, demanded Maillard. Saint-Méard replied that he was thought, wrongly, to have edited a royalist newspaper. A single lie, snapped another voice, would mean instant death. If he was innocent, why had he been charged?
He had begun to reply when a priest was suddenly hauled into the room. A stupefied Saint-Méard watched as the cleric was bombarded with a flurry of questions, sentenced to death, and then pulled away, pleading for mercy. The judges invited him to continue. How could they be sure that documents he had handed up were not forgeries? Saint-Méard suggested, very hopefully, that they should adjourn his case while they checked – only to be interrupted again. A jailer, pale with fear, burst into the room to report that a prisoner was clambering up the chimney. Maillard warned grimly that if he made good his getaway, the turnkey would pay with his life. Everyone’s attention switched to the new drama, as pistols were fired up the flue and a heap of straw was lit in the fireplace. Only when the would-be fugitive dropped into the hearth – where, stunned and ablaze, he was beaten to death – did the trial resume. You have told us many times what you were not, noted one of the judges, but what is it that you are? Saint-Méard desperately replied that he was a patriot and explained that, far from plotting against the Revolution, he had considered it too timid. The claim, addressed to men who were diligently murdering in said Revolution’s name, was an audacious one. None of his judges looked convinced. Most appeared unmoved. Some seemed asleep. But their inscrutability masked one final surprise.
‘I am for granting him his liberty,’ declared Maillard. His fellow judges expressed their agreement, with joy rather than reluctance, and an astonished Saint-Méard was embraced by his jailers. And as he was escorted into the street between the torches of an honour guard, the mob that had just torn a man limb from limb parted to let him through, with cries of ‘Vive la nation!’
Saint-Méard’s experience was far from unique. Around one in seven of those at the Abbaye were spared, and the acquittals were repeatedly greeted with jubilation or tears from judges, guards, and citizenry alike. Historians have typically characterized the trials as shams but, understandable as that is, it raises an obvious question – who was being fooled? Saint-Méard struggled to believe that the proceedings were something more exalted and succeeded to the extent that his life was saved. His judges were partners as much as adversaries, from the moment that they asked him to explain his arrest to the point when they freed him. Far from deliberately performing the preamble to a murder, everyone was longing to enact a dream of liberty, equality, and fraternity. And the delusions created their own reality.
The law has become so closely associated with reasoned deliberation that it is sometimes hard to think of criminal trials as anything other than inquiries – but they have always performed a function that goes far beyond that of establishing who did what to whom. The first judges were priests, whose punishments were as sacrificial as they were penal, and the law has ever since asserted the power most proper to gods: the ability to rebalance a cosmos knocked out of kilter. Since the days of ancient Athens, there is no wrong that it has not somewhere claimed to right – even when no human defendant has been available to carry blame. In the courts of early modern Europe, creatures from beetles to bulls were regularly prosecuted, defended, and condemned at public expense. English juries for several centuries returned homicide verdicts against mischievous objects from haystacks to locomotives. Lawyers discovered new categories of criminal, from traitors to werewolves, whenever popular passion or private fear required. The long arm of the legal process even reached into the grave: for well over half a millennium, the bodies of dead criminals were brought into court to be accused by witnesses, defended by advocates and, if convicted, punished by the public executioner.
The cowls have metamorphosed into gowns and the incantations have turned to jargon, but ancient impulses still quiver around every courtroom. Rational concerns and logical argument typify any given case, but the terror of infanticide and Devil worship that once sent witches to their deaths was resurrected, in the form of satanic sexual abuse allegations, during the 1980s. Animals and corpses are no longer put on trial, but the urge to punish defendants regardless of their mental state lives on in prosecutions of children and the mentally ill. Perhaps the best example of the continuing faith in legal omnipotence comes from a case that never quite happened. In the spring of 1949, the first president of the Israeli Supreme Court, Moshe Smoira, received dozens of petitions from Christian clerics around the world. His country was less than a year old and had just fought off five Arab armies committed to its destruction, but the writers had few doubts about the urgency of their appeal – and none at all concerning the legitimacy of the Jewish state. Would he please, they asked, reopen the proceedings of the Sanhedrin and overturn the conviction of Jesus Christ?
This book quickened in 2000 in London, where I had been working for seven years as a criminal barrister. Almost a decade before, I had lived in post-revolutionary Prague and had then been struck by the extent to which many Czechoslovakians seemed to be blaming others to avoid tough questions about their own contributions to the communist era. I had vaguely wondered then if such thoughts might stretch into a book on scapegoats and soon decided that they would not. The weird dynamic of naming and shaming continued to interest me, however, as I represented villains both innocent and guilty, and by 2000 I was ready to try again. This time, I had a far clearer structure in mind. By writing a history of the criminal trial, stories rather than theories would drive the book forward.
Events elsewhere would further delineate its structure. Before Prague I had studied at Harvard and qualified for the New York Bar, and it seemed a sensible idea – or at least a pleasant one – to relocate to the United States. I reached New York in the summer of 2001. By mid August I was ensconced in a small studio with a splendid view over Manhattan’s financial district. Thus it was that on 11 September I watched from my windows as the towers of the World Trade Center burned and collapsed. Over subsequent weeks I wandered a city in mourning, personally unable to write and convinced that little was now of less significance to anything than an analysis of the criminal trial. I would spend another two and a half years in the United States and my mood would pass. But others, many of them in high places, were expressing similarly gloomy conclusions about the redundancy of the criminal process – and in their case, the trauma would have lasting effects. Over the next few months, a landscape familiar to me since law school seemed sometimes to be melting away. Several legal commentators were suggesting that the constitutional right to silence should be abolished. A Harvard law professor whom I had once respected proposed that it might be time to introduce a right to torture in its place. The administration of President George W. Bush, meanwhile, embarked on a policy of deeming entire categories of people, American and foreign, to be subject to indefinite detention without a right of access to courts, let alone a right to public trial.
Emergency powers have been invoked to combat terrible crimes since the days of heresy and witchcraft, and the fact that twenty-first-century commentators were readopting stances that inquisitors had abandoned in the eighteenth soon reassured me that a little historical perspective would not go amiss. But the aftermath of September 11 also sharpened the focus of my book. I had always anticipated that a central theme would be the conflict between reason and emotion – a tension that galvanizes any courtroom – but in the new climate a more fundamental aspect of that link came to the fore: why trials take place at all. For at the same time that hundreds of people were being accused without prosecution, official talk of justice – and even Infinite Justice – was reaching a crescendo. Governments are not the only component of a criminal justice system, but the reasons that they avoid courts increasingly came to seem at least as significant as the reasons that they resort to them. The relationship between secrecy, publicity, and transparency consequently became central to my book.
From the very outset, I chose not to conduct interviews. Contemporary topics such as capital punishment and the war on terror would have called for a range of views from participants ranging from defendants to judges. Anthropologists, sociologists and political scientists, not to mention historians and lawyers, might all have had other worthwhile things to say. Finding experts to cover every subject evenly would have been beyond my time and inclination. The book quotes from countless chronicles, pamphlets, transcripts and newspaper reports but mine is the only voice to keep the babble in line.
The task that lay ahead when I began was a daunting one. The tale I intended to trace began more or less at the dawn of time, hopped back and forth between centuries, and demanded that I address subjects as dark as child abuse and terrorism with as light a touch as possible. It was a tall order, and attempting to fulfil it gave the book a very particular structure. Rather than use a straightforwardly chronological approach, which lacked flexibility, or compile a compendium, which would have bored me let alone anyone else, I divided the work into eight thematic chapters that proceed in roughly historical order. They begin with the religious rituals of the classical and barbarian worlds and end in the trial circuses of today, and several address specific aspects of twenty-first-century justice. Each dovetails into the next and with luck, they combine to form more than the sum of their parts.
Several ideas run through the chapters, but one simple theme could be said to link them all: the tension inherent in the criminal process between the desire to punish and the fear of making a mistake. Courts have collectively spilled at least as much blood as the people they condemned, but they have always aspired to more than violence. The oldest laws yet to be discovered, enacted by Babylon’s King Hammurabi in the eighteenth century BC, worried about injustice to the extent that false witnesses were to be punished as harshly as those who were properly convicted. And although the sword of righteousness has been in play since King Solomon, confronted with two women claiming the same child, threatened to slice it in two and wisely surmised that the impostor was the one who agreed. Justice has wielded another tool for even longer. Four and a half thousand years ago, when Hammurabi’s dynasty was unknown and Athens’ Golden Age shimmered as far in the future as it now lies buried in the past, the priests of Egypt were already venerating the goddess Ma’at, whose scales measured out justice for the dead. In the Hall of Two Truths, watched by a horrid hybrid of cat, crocodile and hippopotamus called Am-Mit, she would place the hearts of those who had just died on one pan, and drop the feather of truth onto the other. If the feather sank, the departed soul would gain entrance to the Kingdom of the Dead. But if it rose, outweighed by the heart’s burden of deceit, Am-Mit would be fed – and its owner would be abandoned to oblivion.
The balance remains the most potent image of justice in the Western world. But as it migrated into modern Europe from Egypt and Babylon, via Jews, Greeks, Romans and barbarians, the meaning of its symbolism would be decisively transformed. No story better exemplifies that than one from the career of Sir Edward Marshall Hall, a famous British barrister of the early twentieth century.
Marshall Hall was defending one Edward Lawrence, charged in 1909 with having murdered his lover with a gun. Lawrence entered the dock with one foot already on the scaffold. He had admitted to police that he had shot her, and declared that he was ‘glad’ to have done so, because she was ‘wicked’ and ‘best dead’. But by the end of the defence case, words that had seemed so damning no longer sounded worse than callous. Lawrence had claimed from the witness box that the victim died accidentally as he was pulling a gun from her. He had re-enacted the struggle three times, so convincingly that even the judge was privately persuaded of his innocence. More than twenty witnesses had told the jury about the victim’s ferocious temper and frequent threats against Lawrence. By the time that Marshall Hall came to make his final speech, a case that had seemed black and white was turning very murky – and it was to uncertainty itself that he now appealed. Standing with arms outstretched, he asked the jurors to imagine ‘a great statue of justice holding those two scales with equally honest hands’ and began methodically to go through the evidence for and against his client. First one side, and then the other, he told them – swaying all the while – might seem lower. It might be almost impossible to say which side was closer to the ground. And as the jurors watched, entranced, came the punchline.
Then in the one scale, in the prisoner’s scale, unseen by human eye, is placed that overbalancing weight, the weight of the presumption of innocence…it is your duty to remember the invisible weight of that invisible substance.
With those words, he let one arm drop with a thud to the bench. The jury acquitted after twenty minutes.
The journey from the Hall of Two Truths to the Old Bailey is a vast one. It crosses from the marbled courtrooms of Athens to the ordeal pits of Anglo-Saxon England, passing from the torture chambers of the Inquisition to the judicial theatres of Salem in the 1690s and Moscow in the 1930s. Justice and vengeance, secrecy and spectacle, and superstition and reason intertwine continually along the way, but this book’s trajectory is a straightforward one. At a time when governments appear increasingly unsure whether the criminal trial is a dispensable relic or a touchstone of liberty, it explores why the West came to regard the invisible doubt as a more reliable guide to justice than the feather of truth.
This book is concerned with only the Western legal tradition, and although it covers continental law in some detail in the first few chapters, its modern focus is on the Anglo-American jury trial and the war crimes trial. Any attempt to broaden its scope would have required either oversimplification or a work twice as long, and would probably have produced both. Whether the quality of Western justice is better or worse than that of the justice of other cultures is a question that I have happily ducked. The book’s subject is the brutality or nobility of the West’s institutions, and the extent to which those institutions have honoured or betrayed the ideals for which they claim to stand.
1 From Eden to Ordeals (#ulink_11114a15-870b-5f9c-b0d3-31c28af2bf66)
It is only our conception of time that makes us call the Last Judgment by that name; in fact it is a permanent court-martial.
FRANZ KAFKA, Aphorisms
One of the few things that humanity has agreed upon for most of history is that its laws descend directly from the gods. The oldest complete legal code yet discovered, inscribed onto a black cone by the Babylonians almost four thousand years ago, shows Shamash, god of the sun, enthroned and handing down his edicts to a reverential King Hammurabi. Jehovah reportedly did much the same thing a few centuries later, carving ten commandments onto two tablets with His own finger as Moses stood by on fiery Mount Sinai. Coincidentally or otherwise, it was said of Crete’s King Minos that he climbed Mount Olympus every nine years to receive legal advice from Zeus. Ancient cultures were equally certain that the power to adjudicate breaches of the law rested ultimately in the hands of the gods. The methods of enforcement were often as terrible as they were mysterious – ranging from bolts of lightning to visitations of boils – but the justice of the punishments was as unquestionable as the law that they honoured.
And yet, for all the insistence that heavenly laws were cast in stone and divine judgments unerring, one question always caused turmoil – namely to whom, down on earth, had the right to judge been delegated? The priests who veiled their various scrolls and statutes invariably argued that only they could interpret their secrets, backing up the claim with further revelations as and when required. Monarchs were no less assertive, and constantly sought to interfere with the religious mysteries of justice. Some even argued that the power lay elsewhere. Among the Hebrews, for example, an old tradition prescribed that homicides should be tried by common people, and although Judah’s priests established something close to a theocracy after 722 BC, their oldest myth of all characterized the ability to tell good from evil as every human being’s birthright. The story of the Fall was not, admittedly, a ringing endorsement of the power to judge – Adam and Eve had, after all, paid for their apple with sorrow, sweat, and death – but it was certainly a start.
The Athenians would produce a considerably more robust illustration of humanity’s inherent sense of justice: Aeschylus’ Oresteia, the oldest known courtroom drama in history. The trilogy, first performed in 458 BC, retells the ancient myth of Orestes, scion of the royal house of Atreus – a bloodline as polluted as any that has managed to perpetuate itself on this earth. The corruption had set in when its founding father Tantalus chose, for imponderably mythic reasons, to slaughter his son, boil the body, and serve it up as soup to the gods. Aggrieved Olympians condemned him to an eternity of tantalization, food and drink forever just out of reach, and resolved to visit folly, blindness and pride on his offspring for evermore. Family fortunes began a rapid decline, and by the time that Tantalus’ great-great-grandson Orestes reached adulthood, its history of rape, incest, cannibalism, and murder had generated a degree of domestic dysfunction that was pathological even by the standards of Greek mythology.
The play opens with news that Agamemnon, commander of the Greek armies and father of Orestes, has just triumphed at the Trojan Wars. But all is not well. Victory was purchased through the sacrifice of his own daughter, Iphigeneia, and he has abducted Cassandra, the beautiful child of Troy’s King Priam, to have as his concubine. His wife, Clytemnestra, has meanwhile taken a lover of her own and sworn to avenge Iphigeneia. When Agamemnon returns to the marital home, as oblivious to the obvious as every tragic protagonist should be, the tension mounts. Cassandra waits at the gates while he enters its portals – and the princess, cursed to know the future but powerless to change it, sees horror ahead. Hopping and screeching on the palace eaves are the Furies, supernatural guardians of cosmic propriety, and throbbing deep within are visions of anguish: torn wombs, a soil that streams blood, a bath swirling red…and Agamemnon, dead. ‘I know that odour,’ intones Cassandra, as she steps up to the threshold. ‘I smell the open grave.’ Screams engulf her, and the first act closes with Clytemnestra exulting over the bodies of her husband and his prize, a bloody knife in her right hand. Her work, she proclaims, is a masterpiece of justice.
It all leaves Orestes in a pickle. On the one hand, he loves his mother. On the other, he is honour-bound to slaughter her. Urged on by a crazed Chorus, he makes his way to the family palace, where he first cuts down her lover. He then forces Clytemnestra to gaze on the body. Pleading for her life, so desperate that she bares the breasts that once suckled him, she begs her son to accept that destiny played as much of a role in Agamemnon’s demise as her dagger. Orestes is torn between the claim of vengeance and the tie of affection, and the drama pivots on a moment of hesitation – before it tips. ‘This too,’ retorts Orestes, ‘destiny is handing you your death.’ He hurls his mother to the floor and makes her embrace her lover’s corpse, before running her through with his sword. The sated Chorus re-gathers to pronounce that the family’s misfortunes have come to an end. Resolution remains an act away, however, and Orestes has of course won no more than his turn to bear the ancestral curse. As it settles, stifling, on his shoulders, he sees the serpent-haired Furies swarming to take revenge and even the Chorus finally begins to waver. ‘Where will it end?’ its members wail, ‘where will it sink to sleep and rest, this murderous hate, this fury?’
Aeschylus’ answer comes in the final part of the trilogy. Shadowed by his mother’s supernatural avengers, Orestes seeks refuge at Apollo’s oracle at Delphi. Apollo, god of justice and healing, reassures him that he did the right thing, but advises him nevertheless to seek the protection of wise Pallas Athena. Orestes duly makes his way to her hilltop citadel on the Areopagus of Athens. The owl-eyed goddess is rather more equivocal. There are arguments both ways, she points out, and even she cannot resolve a conflict between right and right. Her solution is simple. She will summon ten Athenian citizens, bind them by oath, and make them decide.
The substance of the argument that ensues is less significant than its outcome – for although the jury splits evenly, Athena casts her vote for Orestes and is so impressed by her innovation that she prescribes its use in all future homicide cases. Athens, she pronounces, stands on the verge of unprecedented peace and tranquillity. Only the Furies remain unconvinced, hissing with repulsion at the thought of harmony, but even they are quieted by Athena’s assurance that they will have an honoured place in her new court. Their venom has been drawn – and the snake-headed hags, optimistically renamed the Kindly Ones, close the play at the head of a torchlit procession through their blessed city.
Aeschylus intended his work as a celebration of Athens in particular and human potential in general. When it was first performed in 458 BC, some two centuries after the scattered farms and fishing villages of the Attican peninsula had first begun to coalesce, the city was at its zenith. It had just seen off would-be invaders from Persia and transformed itself into a regional superpower, while political reforms were entrusting its male citizens with rights of participation and personal freedom never before seen in the ancient world. In a spirit epitomized by a famous assertion by a thinker called Protagoras that ‘man is the measure of all things’, its poets and philosophers were busily blazing trails that still dazzle more than two millennia later. Aeschylus’ brilliance manifested itself in a series of plays, and it was epitomized in the Oresteia. Whereas Homer had simply paid homage to Orestes as a righteous avenger, and Euripides would later resolve his anguish by having him acquitted before twelve gods, the playwright’s perspective was as radical as it was optimistic. Human honesty, he ventured, might be as sure a guide to the mysteries of justice as the most divine of oracles.
Straightforward though that message appears, it is easy to overrationalize it. Aeschylus’ faith was reflected by reality, in that legal reforms had just transferred the power to judge serious crimes from state officials to ordinary Athenian men, but the ritual that he revered was no fact-finding inquiry. There had been no uncertainty about what Orestes had done: he had deliberately murdered his mother, who had just done the same to his father. And just as the jurors were not convened to find facts, the defendant was not cleared because evidence proved his innocence: he was cleansed of guilt because they decided – by the barest of majorities, tipped by the casting vote of a goddess – that he was not blameworthy. Nor was vengeance removed from the process. Honouring the family by repaying wrongs done to it was still seen as part and parcel of the natural order, and any fifth-century Athenian would have regarded forgiveness as cowardly at best and accursed at worst. Aeschylus had made sure to give the Furies a dignified place in Pallas Athena’s court, and the clinching argument that the goddess used to secure their cooperation was a reminder that they had won the votes of half of the jurors. In his play, as in life, vengeance was being idealized and institutionalized, but it was certainly not being abolished.
Aeschylus’ stance reflected a tension between two ideas about justice that were always at odds with each other in the ancient world. One assumption, that people were at fault only if they had done evil deliberately, was almost as common in fifth-century Athens as it is today. However, there also existed another, more visceral, belief – that some deeds demanded punishment regardless of the perpetrator’s intention, if the rage of the gods was to be forestalled. The view was notoriously prevalent among the ancient Hebrews, who enumerated an entire catalogue of unforgivable abominations, from sodomy to sex with mothers-in-law,
(#litres_trial_promo) and used scapegoats and turtledoves to bear away the burden of countless lesser sins. In Greece itself, some three centuries before Aeschylus was born, the poems of a farmer called Hesiod had proposed that entire cities could suffer because of one man’s misdeeds. About three decades after the playwright died Sophocles would retell the notorious tragedy of King Oedipus, whose unwitting seduction and slaughter of his mother and father respectively brought shame and pestilence onto his realm. And fifth-century Athenians did not just write about such matters; they regularly visited suffering on a minority to cleanse the majority. An annual festival called the Ostracism allowed Athenian men to banish a fellow citizen by vote, and although they often did so for practical reasons, the ritual was widely seen as a way of ridding the body politic of contamination. Athens, like other Greek cities, also maintained a stock of human scapegoats known as the pharmakoi – comprising its poorest, lamest, and ugliest inhabitants – whose function was to be feasted and venerated at public expense, until famine or plague struck. They would then be dragged from their thrones and paraded about to the clatter of pans and the squeal of pipes, before being hounded out of the city gates under a hail of stones.
Trials themselves could operate to shift blame as well as discover it – as the Athenians also appreciated. Every midsummer up to the third century ad, they held a festival known as the bouphonia, at which an axe-wielding official would, after sacrificing an ox, discard his weapon and flee the scene. Someone would then flay the beast, and all present would eat the meat, re-stitch the hide, stuff the carcass with straw, and yoke it to a plough – at which point, a trial was convened to establish who, in the absence of the actual killer, was guilty of its death. Accusations were levelled first at the women who had brought the water to whet the blades. They would accuse the sharpeners. Those men, questioned in turn, would blame the people who had taken the axe and the knife from them to the slaughter. The messengers would accuse the carver, who laid one final charge. The true shame, he would argue, lay with his blade. And there the buck would stop. For when the knife damned itself by its silence, the axe was formally acquitted and the guilty weapon was hurled into the sea.
Although the modern mind tends to picture Greek courtrooms as sunbleached temples to debate and deliberation, a similar tension between reason and unreason characterized the rituals that were used to resolve actual crimes in fifth-century Athens. Freemen had gained the right to judge – which they would exercise not in groups of ten, but in assemblies of up to a thousand and one – but while they were building a fizzing, babbling democracy, seventy silent per cent of the adult population remained legal nonentities. Women were permitted to litigate only through guardians, while slaves could not even give evidence except under torture, on the strength of a theory that they were constitutionally incapable of telling the truth unless subjected to great pain.
Trials for homicide, a touchstone of the social order in any close-knit community, were not just affected by superstition but founded on it. It was commonly believed that killers exuded the miasma, a vapour so abhorrent to the gods that the slightest whiff could incite them to rage, so despicable that those around whom it clung were barred from temples, games, and marketplace – and so persistent that only a trial could dispel it. The origins of the miasma are as misty as those of any myth but its existence in fifth-century Athens was a firmly established sociological fact. Murder trials were held outdoors to minimize the risk of infection, and at least one defendant relied on its reality to prove his innocence, pointing out to his judges that he had recently sailed in a ship that had not sunk. Killers sometimes attended court to purge themselves even when there was no one to prosecute them – as might happen if the deceased was a legal cipher like a slave – and one Athenian tribunal, the prytaneion, was dedicated to nothing but the prosecution of killer beasts and murderous objects.
(#litres_trial_promo) Defendants who had been exiled for one murder but wanted to cleanse themselves of a second charge were tried in the most prudent court of all. It convened at a stretch of Athenian shoreline called the Phreatto where the accused addressed his judges from a boat, which bobbed offshore at a suitably circumspect distance.
The superstition played an important role in anchoring the criminal trial in Athenian society. It sharpened the only choice open to most defendants in the ancient world – whether to undergo a trial or enter exile – and at a time when predators human and bestial roamed the countryside, those accused had every reason to take their chances in court. It simultaneously made it more likely that accusers would prosecute, for the miasma was also thought to linger around anyone who failed to obtain vengeance. And as it became established that prosecutions were as valid a form of revenge as any other, the premium that was placed throughout the ancient world on life behind a city’s walls also generated its own moral basis for the exercise of judicial power. The law codes of Israel and Judah instructed municipal officials to grant sanctuary to killers only if they agreed to stand trial, and in Athens, where idealization of the city ran especially deep, it became established that judgments were binding, whether right or wrong. A willingness to take complaints to court and abide by judicial rulings became, literally, the civilized thing to do.
No ancient trial better illuminates the development than the most famous one of them all: the prosecution of Socrates, charged in 399 BC with having invented new spiritual beings and corrupted Athenian youth. The 70-year-old was a metropolitan fixture at the time of his prosecution: an ugly, acerbic and provocative philosopher who had spent decades haranguing hecklers and debating passers-by on the nature of the universe. Through a series of historical accidents, the accusations have entered popular history as the persecution of a sage, condemned by a city that could not bear to hear some harsh truths about itself. The assessment obscures considerably more than it illuminates.
It stems from the eyewitness reports of just two men – Socrates’ pupil, Plato, and an acquaintance called Xenophon – and neither is a reliable narrator. Plato produced the more comprehensive account, but the future philosophical colossus, then a mere prodigy of 28, omitted to record much of the crucially important political background to the case. Assumptions of style and relevance undoubtedly played some part in that, but so too did the fact that Plato idolized his teacher and was concerned throughout to portray him in the purest light. One effect has been to consolidate an enduring popular myth that the charges were more irrational than they were. Another has been to blur one of the most important aspects of the trial. Plato’s account leaves no doubt that the prosecution pitted the community against the individual, but its outcome illustrated how Socrates was bound to Athens as much as it showed his ability to stand up against it.
The Athens that put Socrates on trial was a shadow of the city that Aeschylus had glorified half a century before. Three decades of war with Sparta, its militaristic rival, had recently come to an end. The Spartans had vanquished the Athenian navy and then reduced the city’s starving population to unconditional surrender before destroying its fleet and demolishing its walls. The physical collapse was rapidly followed by political disintegration. A despotically inclined citizen called Critias had established a collaborationist oligarchy known as the Thirty, and for eight months Athens became a police state, terrorized by bands of dagger- and whip-wielding thugs who daily murdered opponents of the new dispensation. Around fifteen hundred people were summarily executed – almost as many as had died over the previous ten years of war – before the terror came to an end in 403 BC. The restored democracy declared an amnesty for political offences in the interests of peace – but plenty of Athenians remained eager to settle accounts.
Socrates was among those who paid, heavily, but he was not chosen at random. No one has ever been entirely sure what ideas he expounded, because he wrote nothing and owes his philosophical footprint to Plato; but among the tenets later attributed to him were a number that chimed neatly with those of the oligarchs. They included a belief that wise individuals could gain insights into absolute truths – a claim that was well suited to those who subscribed to the ‘rule of the best’, or aristokratia, and who pointed out that democracy could guarantee neither wisdom nor justice. It is also known that Socrates was not only an indirect inspiration to the enemies of democracy. He had taught several men closely associated with the Thirty – one of whom was none other than Plato, connected to the aristocrats by a web of social and family connections. Another was a second cousin to Plato – Critias himself. As if that did not make the old man suspect enough, he was widely known to admire Sparta, a fact so notorious that the playwright Aristophanes had mocked him for it throughout his comedy, The Clouds.
None of the smears had much substance. Whatever Critias may have taken away from his lessons with Socrates, the older man remained sufficiently independent to disobey an order to arrest an innocent man during Critias’ time in power. The single-mindedness of Spartan society certainly appealed to the philosopher in Socrates, very likely because he saw in its rigour a triumph of the human will. The totalitarian shadow of such beliefs is now apparent, but it could not have been to Socrates, and his admiration for Sparta seems to have resembled the rose-tinted feelings that some twentieth-century intellectuals once harboured towards the Soviet Union – symptomatic of idealistic impatience rather than venomous treachery. His ideological flirtations did not, in any event, stop him serving Athens loyally during the war, both as a civic officer and as a soldier.
There is little doubt, however, that the capital charges against Socrates, though framed in moral and religious terms to get round the amnesty for political offences, were effectively ones of treason. Although Plato chose not to record the speeches of the three accusers, the allegation was that he had lent aid and comfort to Athens’ enemies at a time of war.
Plato’s account of Socrates’ trial portrays the older man as a model of integrity, as determined to expose the weaknesses of the case against him as he was resolute not to save himself through flattery. In his record, the snowy-curled philosopher, standing before 501 fellow citizens, began with the traditionally disingenuous plea of the seasoned orator – an apology for his inarticulacy – before launching into a speech that honoured nothing but the truth. He opened by telling his listeners that the oracle of Apollo at Delphi – the source of wisdom visited by, among others, Orestes in the Oresteia – had identified him as the wisest person alive. Although initially puzzled, he had come to realize why – for he more than anyone else appreciated the limits of his own knowledge. The charges against him were however nonsense. They accused him of teaching young people to believe in new gods, and he had never done that. It was true that a spirit whispered in his ear, but it was a travesty to call that spirit a god. Its voice simply told him to speak plainly and ask awkward questions, and although such behaviour had made him unpopular, he would not stop even if acquitted. He was like a horsefly on the lazy beast of Athens. His judges would spare him if they were sensible, but he suspected that they would sleepily swat him down instead.
Despite the uncertainty over what Socrates taught, it has always been known how he taught it – essentially by prodding his listeners to conclusions that theoretically represented truths that they already knew – and there can be no better demonstration of the technique than the performance recorded by Plato. Some people find the speech moving, while others consider it the preaching of a prig; but whatever the best way to characterize Socrates’ defiance (and Xenophon claims that he simply wanted to die) it won him few friends. He inspired such hostility that he had to ask for silence several times, and although shouting, clapping and booing were common at Athenian trials, when the judges voted, by dropping pebbles into earthenware jars, about 280 of the 501 were for conviction.
Athenian law required that Socrates propose his own sentence, but his response to conviction was to become even less conciliatory. Xenophon recorded that he refused to suggest anything. Plato has him telling the judges that what he most deserved was maintenance at state expense for the rest of his life, dismissing exile with the explanation that the judges were too likely to impose it if he proposed it, and finally condescending to pay a derisory fine. The old man’s supporters swiftly multiplied his offer thirtyfold, but the damage was done. When the ballots were counted, at least eighty of those who had supported his acquittal were now voting for his death. Still Socrates remained undaunted. He would not weep or wail to save himself. He looked forward to meeting the immortals. ‘Now it is time that we were going, I to die and you to live,’ he concluded. ‘Which of us has the happier prospect is unknown to anyone but God.’
Plato’s record, for all its bias, must be largely accurate – not least because his contemporaries would otherwise have written spirited corrections – but Socrates was not condemned simply because he was too honest to deny his genius. The city had just imploded after the most bitter war in its history, eviscerated by a Sparta that he idealized, and those judging him would almost all have been touched by the brutality of the Thirty. When he claimed exalted insights and spoke of a spirit that whispered into his ear, they would have recalled that his wisdom had been taught to traitors. To many of those who heard him, he was neither a harmless crank, nor a seeker after truth. He was an accessory to mass murder.
But the conflict between Socrates and the state would have an unexpected ending. After spending a month in his condemned cell, considerably more jolly than his morose acolytes, he was visited by a pupil called Crito who told him that an escape had been organized. Socrates, however, refused to countenance the idea. He had voluntarily attended his trial instead of exiling himself, he reminded his old friend, and he invited him to contemplate what the laws of Athens would think about the proposal if they were able to speak. As far as Socrates was concerned, they would be horrified. ‘Do you imagine that a city can continue to exist and not be turned upside down,’ they would ask, ‘if the legal judgments which are pronounced in it have no force but are nullified and destroyed by private persons?’ Socrates owed it to the city to stay. It was only through its laws that his parents had been able to marry each other and that he and his children had received their education. He had no more right to undermine an Athenian law that was being wrongly enforced than he would have had to retaliate against his father or his employer.
The willingness to yield to judgment after so steadfast a defence was remarkable enough, but Socrates would now bow even lower. For he did not simply submit to punishment – he carried it out. Athenian law allowed some capital offenders to purchase poison from the state, and Socrates did so. Plato records that he drained his glass in one gulp while disciples wept uncontrollably, and took his leave of life by asking Crito to sacrifice a cock to the god of healing. The pain was over. ‘Such…was the end of our comrade,’ observed Plato, ‘the bravest…wisest and most upright man [of our time].’
As such remarks incessantly remind the reader, Plato was writing in large part to tell Athenians that their verdict had been an awful mistake, but the significance of his account can hardly be overstated. The arguments that he put into Socrates’ mouth, idealizing the law while condemning those who misapplied it, would reverberate down the centuries. They would give birth to the notion that rules can be trusted even when humans cannot, inspiring ideals like the rule of law and the notion that some rights are inalienable. They would have a darker side, underpinning the authoritarian vision of a state that knows best and civil liberties that are always contingent. The record also showed, for the first time, how trials can enforce judgment by turning defendants against themselves. It was a development that would be seen time and again, whenever communal values and political institutions grew sufficiently strong to harness the force of the individual conscience. Its significance was summarized by Sigmund Freud in an image that bears repetition, even if the psychoanalytical theories underlying it might not. ‘Civilization,’ he wrote, ‘obtains mastery over the individual’s dangerous desire for aggression by weakening and disarming it and by setting up an agency within him to watch over it, like a garrison in a conquered city.’
The conventional bridge from Athens to the modern world is the civilization that conquered Greece in 200 BC – Rome. By then, the Republic had a legal culture that was already some three centuries old and its jurists were on the way to developing complex rules of contractual and property law, but its notions of criminal justice would never become quite as sophisticated. Spectacular treason and conspiracy trials would punctuate Roman history, but they were as political as they were principled: an opportunity for ambitious Romans to rally their supporters, display their power or publicly turn the tables on their rivals through a successful prosecution or defence. As in Athens, citizens facing a capital charge had the choice of departure or submission – required either to exile themselves, or attend court unwashed, unshaven, and in shabby mourning dress – but such ritualism rarely stretched to soldiers and never touched the cases of slaves. Roman law had originated in priestly mysteries just as holy as those of any other culture, but justice in the empire was a tool rather than an ideal, wielded by magistrates whose role was to police an empire rather than to honour a tradition.
The most distinctive feature of Roman penal laws was, unsuprisingly, not the trials they mandated but the punishments they prescribed. Prisoners of war and those convicted of murder, arson, or sacrilege might be executed at the arena – burned alive as a warm-up act, or offered as fodder to hungry beasts while the gladiators took a breather. The most notorious prosecution in Roman history is accordingly remembered not for the perfunctory ritual of condemnation but for the horrors that were reportedly inflicted subsequently: whether Jesus was convicted by the Sanhedrin or Pontius Pilate pales into insignificance against his scourging, whipping, and crucifixion. Other penalties made his fate look almost mild. A debtor, after sixty days in prison, was punishable by execution or enslavement at the election of his creditor – and if the insolvent owed money to more than one person, the plaintiffs could adjust their losses (among other things) by collectively tearing him apart limb from limb. Most rococo of all was the punishment imposed on those who killed a parent. The parricide was beaten with rods until blood was drawn, and then drowned in a sack with a dog, cock, monkey and snake, or some writhing permutation thereof.
The allure of Rome was such that Europe’s lawyers would never stop asserting a Latin pedigree for their own legal theories, but a historical firebreak divides the classical and medieval worlds and the claims would very often be wishful ones. Rome’s criminal laws in particular would reach modern Europe only in a highly warped form. There was one aspect of its criminal justice system, however, that was destined to have a lasting and widespread impact, in the field of criminal law as much as any other. The Romans, consummate intriguers that they were, had become fascinated by the Greek art of persuasion, and in the first century BC a defence lawyer called Marcus Tullius Cicero restated the rules of rhetoric in a form that has survived to the present day.
Some of Cicero’s theories were very specific to his time and place. He advised, for example, that anger was best expressed with high-pitched staccato phrases and that speeches should always be made with the right hand extended like a weapon. Energetic passages, he felt, ought to be both introduced and concluded with a vigorous stamp of the feet. But he also possessed a cynicism that was timeless. Advocacy, he claimed, was about advancing ‘points which look like the truth, even if they do not correspond with it exactly’, and he was said to have boasted twice of winning acquittals by throwing dust into his judges’ eyes. His own life encapsulated the mixture of brutality, efficiency, and superstition that characterized Roman criminal law – and never more so than when he took leave of it. He was one of the first people to theorize that laws presupposed the right to a trial, but he personally arranged for several summary executions in 63 BC, and he himself was assassinated twenty years later on the orders of Mark Antony, then one of Rome’s ruling triumvirate. The posthumous treatment of the 63-year-old was eloquent comment on the judicial system that he had come to personify. The rostrum of the Roman Forum, from which he had won so many hearts and minds, was adorned with his severed head and hands. Mark Antony’s wife is said to have taken an even more symbolic revenge. Cicero had recently attacked her in several vitriolic speeches, and according to one Roman historian, she now inflicted the most poetic injustice of all, driving a hairpin through the great orator’s tongue.
Rome formally adopted Christianity as its state religion during the fourth century AD. The Holy Roman Empire would loom large in Europe’s history over the next millennium, inspiring countless wars between popes and princes who sought to cloak themselves in its pseudo-legitimacy, but Roman culture itself would collapse long before the nations of medieval Europe began to emerge. In the middle of the fifth century, waves of invaders thundered out of central Asia and set off a chain reaction of hostilities that soon robbed the Empire of its heart, as barbarian incursions caused the imperial capital to relocate to Constantinople. In the late 520s, Emperor Justinian had his lawyers produce the Digest, a codification of virtually every Roman edict and legal theory ever penned, but his honouring of one tradition was accompanied by the evisceration of another. He simultaneously closed Europe’s last institutional link to ancient Greek philosophy, the Athenian Academy that Plato had established to perpetuate the teachings of Socrates some nine centuries before. A curtain was falling on the ancient world.
Scientists have recently postulated that the impact of a comet or a volcanic eruption set off catastrophic climatic cooling during the mid 530s and, whether or not they are correct, the decade marked the beginning of four centuries of unprecedented gloom. The Black Death reached Europe for the first time, spreading like an inkblot from its southeast corner, and more marauders were soon storming in from the steppes. By the middle of the next century, an entirely new horde was sweeping out of Arabia behind the standards of Islam, conquering, converting, or killing all in its path. Europe’s Vandals, Franks, Goths, and Celts were meanwhile stampeding about like beasts in a forest fire, fleeing disaster one year only to shove their neighbours towards it the next. It was the beginning of the era that the peoples of western and southern Europe would come to call the Dark Ages. As monasteries were abandoned and monks forgot how to read, Christendom dropped the baton of learning that had been passed around the Mediterranean for a millennium. By the time it recovered its wits five centuries later – thanks in large part to translated texts and fresh commentaries preserved by Arab and Persian scholars – Greece would be barely a memory, and Rome’s traditions would have been bastardized almost beyond recognition.
Two peoples would clamber towards the top of the heap. The first were the Germans, a cluster of tribes originating somewhere in Asia, who ousted the Celts from a vast chunk of central Europe. While some established the settlements that would eventually coalesce into Germany, others, known as the Franks, settled west of the Rhine in the region known as Gaul. The second group – the Scandinavians – would arguably have an even greater reach. A contingent of Danes invaded Britain during the mid fifth century, accompanied by two north German tribes known as the Angles and the Saxons, and a later wave of emigrants travelled considerably further during the 700s. In search of a little living room, the Norsemen got as far as America and North Africa, established permanent colonies in Greenland, Iceland, and Russia, and caused so much havoc among their erstwhile cousins in England that the country had to be partitioned in the late 800s. (They would only stop sticking their oars into the island’s politics in 1016, when Denmark’s King Canute brought the interference to a neat conclusion by taking over entirely.) Viking raids in Gaul led to a compromise no less significant when, in 911, King Charles the Simple persuaded a red-headed raider called Rollo to swear allegiance in return for control over a large region near Rouen. Rollo reportedly displayed little fealty to the Frankish monarch, delegating the job of kissing Charles’s foot to a flunky who upended the royal leg. His hairy warriors would, however, become some of the truest sons of feudalism – for as they swapped their longboats for horses, Gaul became France and the Norsemen became the Normans.
The barbarians, whose customs incorporated ingredients from as far afield as Mongolia and India, transformed Europe’s notions of justice just as dramatically as they affected every other aspect of continental culture. Although the Romans’ concepts of contractual and property law lived on, their pragmatic techniques of dealing with crime expired or mutated as semi-rational inquiries gave way to rituals that relied squarely on the gods. For whereas the deities of Rome and Greece were never called upon to adjudicate actual trials, few areas of human endeavour seemed to fascinate those of the barbarians more. Celtic Druids caged troublemakers in mammoth wicker effigies that were periodically set ablaze to propitiate their gods. German priests enjoyed a similar monopoly over judgment and dispensed punishments that were regarded as offerings to the god of war. Scandinavian religion produced one of the most bloodthirsty ceremonies of all. In honour of Odin, criminals were strangled from long wooden beams and stabbed repeatedly while they died. Odin’s time was running out, but the ritual that honoured him was destined to last – for the Norse gálgatré would come to be known as the gallows tree.
The appeal of vengeance was even stronger among the barbarians than it had been for the Athenians. Few activities were quite as satisfying to German and Scandinavian warriors as the thrill of hunting down and annihilating a kinsman’s killer and they did not even theoretically leave the job to the gods. Whereas the Furies of Greece had stood ready to wreak vengeance if a kinsman failed to do so, the closest barbarian equivalent were the German Valkyries, and they were responsible only for hovering over battlefields and transporting fallen warriors to Valhalla. The shame of cowardice and the spur of a fame to outlast death were enough to make the barbarians settle scores themselves.
The eagerness for revenge finds expression in all the great literature of the era. The epic poem of Beowulf, written in the tenth century and composed up to three hundred years earlier, was concerned throughout with justice, and it was owed as much to the dead as to the living. On occasion, the dead even had the prior claim. When King Hrethel’s eldest son was accidentally killed by a younger one, the monarch was plunged into despair – not only because his firstborn had died, but also because kinship rules forbade him from killing the survivor.
No less vivid is the Norse myth of Balder the Beautiful. Balder, the god of light, was so beloved that when he dreamed of death, his mother Freya was able to persuade almost every single object on earth not to hurt him. She failed to ask only the mistletoe, a plant so young and feeble that it seemed entirely harmless. The omission would, needless to say, have consequences. As news spread around Asgard that Balder was invulnerable, his fellow gods began playfully to pelt him with battleaxes, clubs, and spears. Only two stood on the sidelines: Loki, god of mischief, and Hodur, the blind, dim twin of brilliant Balder. Loki, unremitting prankster that he was, had made it his business to learn mistletoe’s secret, and he asked Hodur why he was not joining in the fun. Hodur explained sadly that he had no missiles, and wouldn’t know where to throw them even if he did. Loki offered to assist. He happened in fact to have a bow and a mistletoe dart. And thus it was that while Balder was joyfully bouncing off hardware from every other direction, Loki guided Hodur’s aim and a whirring arrow skewered like a stiletto through Balder’s beautiful forehead. The god teetered and toppled, and had barely hit the ground before a fellow deity called Wali had sworn neither to comb his hair nor wash his hands until he had sent the guilty party to the underworld. But it was not Loki whom he had in mind. His first concern was with the killer himself – and it was hapless Hodur who was hunted down and despatched to the shadowlands of Hel.
Christianity made steady headway through the new peoples, but the potency of such traditions was such that it was converted almost as much as the pagans were. The idea that the morality of a deed depended on the doer’s state of mind, though seen throughout the Bible and common among the Athenians and Romans, steadily gave way to a sense that acts were good or evil, regardless of intention. Christianized rulers often enacted laws based on the Bible but, keenly aware of the fragility of their authority, generally did very little to enforce them.
Laws were not, however, abandoned. Although rulers could not make their subjects be good, they began to establish some control over their feuds and squabbles by fixing guidelines for compensation, and asserting that complainants could resort to violence only as a last resort. The tariffs varied depending on the seriousness of the offence. The laws of the Salian Franks, written down towards the end of the fifth century AD, required three shillings from those who defamed someone by calling them a fox or a hare. Abducting a virgin in Kent a century later entitled her owner to fifty shillings. Among the Frisians of the late eighth century, the value of a life ranged from cost price, for a slave, to eighty shillings for a nobleman.
Such codes hardly made for the rule of law, but each reflected the development that Aeschylus had once idealized in the Oresteia: the attempt to formulate collective justice as an honourable substitute for private revenge. The same process seems to occur whenever a community becomes sufficiently self-aware to recognize that it has disputes to resolve. Cultures around the world have used countless different methods to contain the violence. Among the Inuit of Greenland, disputants once abused each other in song and proved the superiority of their claims through feats of great athleticism. The Tiv of Nigeria chanted insults at their opponents, and tied them to trees. Massa clans in Cameroon–Chad used to thrash out their differences by fighting huge battles with very small twigs. And the proto-litigants of medieval Europe relied on a very particular technique of their own – the oath.
The oath has probably been guaranteeing truth for as long as humanity has been able to envisage a power more vengeful than itself, and the promise to the divinity concerned has always been a terrible one. Accuser and accused in an Athenian murder trial would swear on their children’s heads while standing atop the entrails of a boar, a ram, and a bull. One method of renewing the Covenant among the ancient Hebrews involved walking between the two halves of a bisected calf. Medieval Christendom used tokens of mortality no less fearsome, typically the body parts of saints, and oaths formed the basis for its earliest trials – ceremonies known as compurgation, at which defendants proved their innocence by gathering together people willing to swear to their cause.
The ritual was enshrined in writing in the very first barbarian law codes, and by the seventh and eighth centuries it was being practised across Europe. Under open skies, each member of the team – known collectively as compurgators, conjurors, or jurors – would swear upon a shard of holy shinbone, say, that the defendant had not committed the alleged crime. The number of witnesses required depended on factors that ranged from the status of the suspect to the nature of the offence. Queen Uta of Germany, accused of adultery in 899, was acquitted only after eighty-two knights stepped forward to confirm her chastity. It would have taken six hundred people to acquit an accused poisoner in Dark Age Wales. On the other hand, those lucky enough to be deaf, dumb, aristocratic or pregnant were often accorded special privileges, and anyone accused of crime in seventh- and eighth-century Spain was downright lucky. Suspects who swore to the baselessness of charges laid against them were not only absolved of guilt, but also awarded compensation at the expense of their accusers.
Such proceedings, though reliant on witnesses, were not inquiries. The oath, far from ensuring the reliability of evidence, was the evidence; and jurors swore to their support of a defendant rather than to what they knew of a case. One consequence was that they were liable in some places to punishment for perjury if they got it wrong. Another was that any formal defect in the ceremony allowed people to lie with impunity. Swearing falsely on a saint’s relics was ordinarily a one-way ticket to hell, but if the reliquary was empty – because, for example, the testifier had secretly removed its contents – a person could swear that black was white with no ill effects at all. Similarly, it was a grievous sin to speak falsely to a priest while holding a consecrated cross, but fine to clutch the crucifix and lie blind if the only people present were non-clerical. In medieval Europe, breaking a promise was of little consequence. The fault lay in doing so after God had been asked to watch.
At the end of the first millennium AD, attitudes towards criminal justice in Europe therefore stood at a cusp. Religious and secular authorities were trying to encourage individuals to give courts a chance before taking matters into their own hands, but the belief in vengeance remained alive and well. The passions of the feud were being accommodated rather than ignored, and they were always liable to spill over beyond the institutions designed to contain them. No tale better captures the frailty – and peculiarity – of the attempts to tame gang warfare with the oath than the Icelandic Saga of Burnt Njal.
The story was written almost three centuries after the island’s conversion to Christianity in AD 1000, but it depicts a land rumbling to rhythms far older: a volcanic place of trolls and sprites, where the earth would more likely shrug its shoulders than a man would turn the other cheek. Feuds erupt and cool throughout the fifty years spanned by the work, but the narrative hinges at a point when men loyal to a chieftain called Flosi burn the eponymous Njal to death in his farmhouse. Njal and his wife steadfastly await the flames from the discomfort of their bed and his immediate family chooses to perish alongside him, but one relative determines to escape. Nephew Kari Solmundarson clambers to the rafters and, treading timbers that are sweating smoke, reaches the edge of the building. Seconds after he leaps from the roof, his hair and clothes ablaze, it crashes to the ground. After dousing his sorrows in a nearby stream, he embarks on the mission that will make his name a byword for good fortune throughout Iceland. In agony though he is, disfigured though he is, and bereaved though he is, Kari is also very, very lucky. He has survived to seek revenge.
Outrage mounts as he moves from kinsman to kinsman with news of Flosi’s crime. Thorhall Asgrimsson, a foster son to Njal, is so apoplectic that blood spurts from his ears and he collapses to the ground – a moment of weakness for which he expresses great shame – but he will prove a stalwart ally. For Thorhall Asgrimsson possesses a quality that is hardly less magical than good luck: knowledge of the law. And Njal’s friends and kinsmen agree that it is time to exact an awful revenge. They will take the killers to court.
On being given notice of suit, Flosi ponders whether to settle the case, but is persuaded by a fellow arsonist that, having shown such defiance, it would not be proper to back down. He decides instead to engage a lawyer. After ruling out one candidate, a warrior’s kinsman, on the basis that whoever takes the job is likely to die, Flosi approaches Eyjolf Bolverksson, one of Iceland’s most formidable pleaders. Eyjolf, resplendent in scarlet cloak, gold headband, and silver axe, initially refuses to have anything to do with the case. He is no cats-paw, he declares, ready to meddle in a dispute that has nothing to do with him. Flosi, confronted with a lawyer who speaks of integrity, knows just what to do. He dangles a chunky gold chain from his arm, and Eyjolf rapidly reconsiders. ‘It is only proper for me to accept this bracelet in the face of such courtesy,’ he purrs. ‘And you can fairly expect that I shall take over the defence and do everything that may be required.’ It was a bad move. Icelanders, like virtually every people before and since, had contempt for anyone so dishonourable as to require money to plead for someone’s rights. Eyjolf’s fictional fate was sealed.
The trial takes place on one of Iceland’s endless summer days at the Law Rock, a lava cliff overlooking a large valley and a silver river snaking far below. From across the island, jurors, chieftains, and onlookers converge around the booths that contain the legal teams. All the lawyers are, as is traditional, armed to the teeth and in full battle regalia. On the Rock itself stands Skapti Thoroddsson, the omniscient Law Speaker, who bears the awesome responsibility of memorizing the law and publicly reciting a third of its provisions every year. Kari’s nine jurors are sat on the riverbank, their job not to assess evidence but to swear that procedural steps have been performed correctly. A hush descends, and lawyer Mord Valgardsson steps up to the Rock. In words that echo around the valley, he swears that he will plead according to truth, fairness and law. He calls witnesses to testify that he has been duly appointed and has given the defendants notice of the action. He declares that he has brought nine sworn men to the Law Rock. And do the defendants, he demands, have any objections?
All those watching agree that the performance is a confident one – but Eyjolf Bolverksson, sporting his scarlet cloak and silver axe, then delivers a response that threatens to cripple Mord. Two of the jurors, he contends, should be disqualified because they are related to him. The lawyer, previously so eloquent, is reduced to silence. Consternation spreads across the Rock. The prosecution has barely begun, but seems already to be in ruins.
Only one man can save the day. Thorhall Asgrimsson, bedridden by a monstrous leg inflammation, has been left at home – so upset not to be present that he had waved off his kinsmen with a face as red as beetroot and tears tumbling like hailstones – but his moment of glory has come. Messengers run to the great jurist’s cot with news of the crisis and Thorhall, amused at Bolverksson’s audacity, explains what to do. The advice is relayed to Mord, who swiftly resumes his place. The fact that two of the jurors are his kinsmen does not disqualify them, he retorts. Only kinship with the accuser himself would have that effect. It is, by general consensus, a brilliant rejoinder. Thorhall Asgrimsson, from his sickbed, has saved the day.
A chastened Eyjolf admits that he had not anticipated so unerring a counterstroke, but promptly pulls another arrow from his quiver. Two of the jurors, he declares, are ineligible to swear because they do not own a house. As the jurors rise uncertainly, another wave of anticipation ripples through the spectators. The challenge sounds even more excellent than the first – but the messengers who relay it to Thorhall soon return with more advice. Mord strides to the riverbank, his confidence returning like the tide, and invites both men to resume their seats. The objection is nonsense, he booms. A juror need not own a house. It is enough if he possesses a milk cow. Amidst tumultuous excitement, the point is once again referred for adjudication to Skapti Thoroddsson. The crowds wait in an atmosphere so tense it could be split with a battleaxe, until the Law Speaker emerges from his booth to announce his ruling. The prosecution is right. It is enough to own a milk cow.
Eyjolf finally lets fly with a plea that many think the most powerful of all. Four of the jurors must stand down, he contends, because there are other men who live closer to the scene of the crime. The point is, Thorhall accepts, a superb one. But not so superb as to be unanswerable. Told what to say, Mord steps forward once again. The four jurors are indeed disqualified, he concedes – but a majority verdict will suffice, and five of the original nine jurors remain. For long minutes, the Law Speaker silently ponders the claim. And then he rules. The point is good – so good, indeed, that he is astonished. Until that moment, he had believed that he was the only man alive who knew it to be the law.
The time has come for Eyjolf Bolverksson to advance Flosi’s defence. The case has, he briskly declares, been brought before the wrong division of the Law Rock. He is right, but a new action is swiftly lodged in the correct court and, as the pace of the case accelerates, the arguments become personal. Kari’s side has learned about the bracelet that Eyjolf accepted to argue the case, and they now accuse Flosi of bribery and Eyjolf with procedural incorrectness – each a grave offence punishable with outlawry and confiscation. But just as it seems that Kari’s team has landed a knockout blow, Mord Valgardsson makes a fatal blunder. Rather than await Thorhall’s advice, he impatiently demands that six judges in the new court stand down and that the others award him a verdict. For ineffably complex reasons of Icelandic jurisprudence, he should have asked for twelve judges to be removed instead. The mistake is a serious one. Far from outlawing Flosi’s posse, he has paved the way for Njal’s own kinsmen to be exiled.
A messenger takes the news to Thorhall who, saying not a word, heaves his lame leg from his bed, grasps his spear with both hands, and gouges the abscess from his thigh. Oblivious to a stream of blood and pus that pours from the wound, he strides to the Law Rock. The first man he encounters is Grim the Red, a member of Flosi’s legal team. Thorhall, great jurist though he is, has tired of pleadings and with a single thrust of his spear, he splits Grim’s shoulder blades into two. Several of Thorhall’s kinsmen are stricken with shame. That a sick man should be so brave as to murder his enemies while they stand aside disgraces them all.
The next several pages of the saga describe, with great delight, the mayhem that now ensues. Across the Law Rock weapons fly, bones crack, body parts are pierced, and at least one bystander is hurled headlong into his boiling cauldron. When the Law Speaker suggests to Snorri the Priest that they negotiate a cease-fire, he is speared through both calves and Snorri throws his monks into the fray. Lucky Kari himself, zipping through the mêlée like a wasp among bees, parries, pirouettes and slays with sublime assurance, even managing at one point to catch a spear in midflight and return it quivering into the body of its owner. The casualties mount until Flosi’s dishonourable lawyer is spotted by one of Kari’s companions. ‘There is Eyjolf Bolverksson,’ he roars. ‘Reward him for that bracelet.’ Snatching a spear from a friend, Kari does just that – and the blade that hurtles clean through the renowned pleader’s waist finally resolves the crisis. Each side withdraws in order to treat its injured and bury its dead, and those men still standing return to the Law Rock the following morning. ‘There have been harsh happenings here, in loss of life and lawsuits,’ observes one of Flosi’s team. The time has finally come to bury the hatchet, before matters get out of hand.
The trial is not typical of its era, in that defendants rather than prosecutors were usually the ones required to produce co-swearers, but the Saga of Burnt Njal is based on actual events and accurately depicts the hazards of litigation in late medieval Europe. Formalities were an entrenched aspect of legal procedure everywhere – so much so that a word out of place could cost the speaker a fine, the case or his life, until well into the fourteenth century. Across northern Europe it remained customary to attend one’s case fully armed until at least the late tenth century, each side ideally signalling compromise by clashing together weapons and shields (a ritual known as the weapon-touch or wapentake), and Icelandic trials remained fraught with danger for considerably longer. Violence escalated well into the 1200s, with clubs giving way to small arsenals, until the country’s bishops were finally able to persuade enough litigants to leave their weapons at home for peace to take hold.
Compurgation, rough and ready though it was, was never entirely senseless. It could show a divided community where the balance of power lay. At a time when it was common knowledge that perjurers were liable to be frozen rigid, flipped backwards or reduced to dwarfish proportions,
(#litres_trial_promo) it also encouraged honesty – even if confusion over whether witnesses were swearing to knowledge or belief meant that honesty was never a reliable guide to accuracy. But even in the depths of the Dark Ages, there were sufficient objections to the system that another form of trial process became pre-eminent. As might be expected of an irrational age, the alternative tapped even more deeply into the supernatural. Once a sufficiently large number of people had sworn to someone’s guilt, he or she might be subjected to an ordeal, typically using fire or water, at which God was invited to rescue the innocent by way of a miracle. If He did so, the person making the accusation would be punished. If He declined the opportunity, it was the accused who stood condemned – to banishment or death.
The procedures, unknown in the Bible,
(#litres_trial_promo) probably rested on traditions of elemental worship that the Germans picked up directly or indirectly from India, but the Catholic Church took to them with gusto. As early as the sixth century, a distinguished bishop called Gregory of Tours was informing Christendom that trial by boiling water could be used to disclose God’s will. He told how a Catholic deacon and a heretical priest had agreed to settle their doctrinal differences by plucking a ring from a boiling cauldron, and how, moments before the test was due to begin, the Catholic was found to have smeared a magic balm onto his arm. As the honour of the True Church had teetered in the balance, a stranger from Ravenna had stepped from the crowd and plunged his own arm into the seething waters. The newcomer, whose name was Hyacinth, took some time – reportedly telling bystanders as he groped around that the water was a little chilly towards the bottom and pleasantly warm at the top – but within an hour he had the ring safely in his grasp. His rival then tried his luck, but had the flesh boiled off the bones up to his elbow. ‘And so’, Gregory gravely noted, ‘the dispute ended.’
By the ninth century, a similar ceremony was being used to resolve serious accusations in churches across Europe. While a fire burned in the vestibule, mass would be celebrated and the priest, clutching a Bible, would lead a line of cross-bearing and censer-swinging clerics towards the kettle. To the sound of psalms and the scent of myrrh, the water would then be blessed in the name of the Trinity, Resurrection, and Armageddon, and God would be implored to illuminate that which had been secret. Onlookers would meanwhile pray for the accused’s vindication or destruction according to taste, and he or she would then try to remove a stone from the bubbling waters. The resulting wound would be bandaged and three days later, the priest would remove the dressing and interpret the blister. If he declared it healed, all well and good. But if he pronounced it festering, guilt would be established, and exile or execution would be added to the woes of the accused.
The ordeal of fire switched elements but otherwise followed much the same pattern, requiring defendants to test their flesh against flame and then spend three days praying for a miracle, a merciful priest, or a combination of the two. Glowing iron bars were usually used, but during the eleventh century the mother of Edward the Confessor, Emma of Normandy, was reportedly made to walk barefoot over nine red-hot ploughshares in order to meet charges of an adulterous relationship with the Bishop of Winchester. (If Church chroniclers are to be believed, which of course they are not, she was so manifestly innocent that she had already strolled obliviously across the sizzling blades by the time she asked to begin.) A crusading peasant called Peter Bartholomew underwent an even more spectacular form of trial by fire in 1098. While wandering through the rubble of a ruined church in Syria, he identified an iron pole as the lance with which Jesus had been pierced on the cross. Although similar assertions would put countless others on the fast track to canonization, a faction of fellow soldiers alleged, for reasons unknown, that he was lying. If not, they contended, he would make good his claim by passing through two lines of blazing olive branches. He apparently jumped at the chance to prove his piety, pole in hand, but the story then becomes a little murky. According to Raymond of Agiles, a fierce supporter of Peter’s bona fides, he ambled between walls of flame that were a foot apart and forty feet high, pausing briefly only to converse with the Lord inside the inferno, before emerging unscathed – at which point a mob of admirers excitedly broke his spine. A second account was considerably more sceptical. A third condemned Peter as an out-and-out fraud. Charity, if nothing else, makes it more pleasant to accept Raymond’s recollection, but since even he noted that Peter died twelve days later (‘on the hour set by God’), it probably makes little difference either way.
Several other techniques were used to attract God’s attention. The ordeal of cold water involved immersing bound suspects in exorcized streams or wells, where priests would prod them with poles to see whether they sank or swam. On the strength of a theory that water was so pure that it repelled sin, anyone who floated was convicted; those who sank convincingly enough were vindicated and, with luck, resuscitated. Another type of ordeal, said to be especially popular among the Anglo-Saxons, was the trial by morsel, which required suspects to swear to their innocence and then swallow a piece of blessed bread and cheese without choking to death. It sounds like a procedure that would require a miracle to convict rather than to acquit, but no records survive to confirm or question its effectiveness. One incident from the eleventh century suggests, however, that there were at least some medievalists who regarded it as reliable. The tale concerns the Earl Godwin of Wessex, an eleventh-century maker and breaker of monarchs, who is said to have got up to no good in 1036 while playing host to one Prince Alfred, a young pretender to England’s hotly contested throne. Chroniclers record that Godwin began the evening pleasantly enough, entertaining Alfred at his castle and promising to support his claims, but ended it considerably less cordially by handing him over to his mortal rival, Harold Harefoot, whose henchmen extracted his eyeballs and let him bleed to death. Godwin soon gathered together the requisite number of cronies to swear to his innocence, but Edward the Confessor harboured a lurking doubt and took the opportunity at an Easter banquet seventeen years later to repeat the accusation of murder. Godwin seized a chunk of bread and raised it to the heavens. ‘May God cause this morsel to choke me,’ he bellowed, ‘if I am guilty in thought or deed.’ The chroniclers – none of whom, admittedly, had much time for Godwin – record that he chewed, trembled, and dropped dead.
The notion of God as umpire attained its purest expression in trial by combat. The ritual required plaintiff and defendant to prove that He would take their side in a fight, and after weapons were blessed – to neutralize blade-blunting spells and the like – victory would go to whoever reduced the other to submission or death. There were subtle variations. Women, priests, and cripples generally had to hire professional fighters. German jurisdictions often found other ways to level the odds: a man might be buried waist-deep and armed with a mace, for example, and his female opponent allowed to roam free but given only a rock in a sack. The residents of East Friesland allowed accused murderers to shift the charge onto a third party and prove their innocence by defeating him rather than their accuser. The choices were greatest of all for a defendant in twelfth-century England and France. He could turn the accusation onto innocent bystanders, challenge his own witnesses or, for a few gloriously violent years, appeal a verdict by battling those who had delivered it.
Compurgation and trial by ordeal had little to commend them by modern standards. Although the more blood-curdling ceremonies presumably terrified some guilty people into confessing, only the laws of probability offered any guarantee of occasional efficiency. In an age committed to the notion that a just God was perpetually tinkering with His handiwork, it must however have always been considerably easier to assume the rituals’ effectiveness than to imagine why they might not work. Scepticism was clearly abroad as early as 809, when Charlemagne felt it necessary to bolster ordeals with a law commanding his subjects to believe in them; but even the doubts were generally irrational. Pope Eugene II expressed concerns about perjury during the 820s but he was more worried for the souls of witnesses than the reliability of their evidence – and resolved his misgivings by ordering that defendants undergo the ordeal of cold water instead. Fifty years later, Pope Nicholas I banned trial by combat but he too was no more than suspicious of its value: he replaced it with the ordeal of boiling water, and noted that David’s defeat of Goliath proved that judicial duels might sometimes work.
The mood began to change with the turn of the millennium. As the solstice of AD 1000 came and went with no sign of Armageddon, widespread relief was followed by a sense of rebirth across southern and western Europe. Within less than three years, according to the eleventh-century chronicle of the monk Rudolfus Glaber, men everywhere ‘began to reconstruct churches…It was as if the whole world were shaking itself free, shrugging off the burden of the past, and cladding itself everywhere in a white mantle of churches.’ The physical renewal was complemented by an intellectual revival no less palpable. For the wind that had once moved men like Aeschylus and Protagoras, the belief in reason that had been so long stagnant in Europe, started once again to blow.
Muslim scholars in Córdoba and Persia contributed considerably to the new atmosphere, thanks to their possession of Greek texts that had been lost to Latin Europe for centuries, but so too did the rediscovery in around 1170 of a document that was quintessentially European. And the latter work would ensure that lawyers were at the vanguard of the intellectual revival. For a brightly coloured envelope emerged in Pisa – found, according to legend, by a soldier as he pottered through the ruins of Amalfi – and it contained the core of the vast legal code that the Emperor Justinian had enacted during the dying days of the Western Empire.
The rediscovery of the Digest coincided with a major clash between the papacy and Germany’s imperial throne, and at a time when no source of authority was quite as compelling as tradition, its impact was immense. Clerics were soon flocking to Italy to trawl its text, and as they did so the first great law school to appear in Europe since the days of the Empire coalesced in Bologna. Students were soon producing inventive, ingenious, and mutually contradictory theses aplenty, but when Justinian’s laws were matched against contemporary practice, one fact was stark. They contained not a jot of support for trials by ordeal. The work of canonical scholars, who were simultaneously organizing centuries of papal edicts and saintly pronouncements into systematic compilations for the first time, only made it clearer that the same was true of Scripture. A problem was becoming apparent.
The first generations of scholars hesitated to follow their concerns through, but by the late twelfth century opponents of ordeals were increasingly making themselves heard. One of the most outspoken was Peter the Chanter, a prominent theologian based at the Parisian cathedral of Notre Dame. If trial by battle was so infallible, he wondered, why did people who hired champions invariably prefer seasoned warriors to wizened old men? When three defendants were charged with the same offence, and were therefore required to carry the same red-hot iron in turn, was it really divine intervention that made the last in line least likely to show a burn? And what did it mean to say that God was watching over every ordeal if – as Peter knew had occurred – people were sometimes hanged for crimes that had not even taken place? Peter’s conclusion, reiterated to room after room of spellbound students, was as simple as it was revolutionary. The system tempted the Lord to work miracles more than it tested humanity for its sins, and the clergy should have nothing to do with it.
Complementing such principled criticisms were eminently practical ones. Even at its fairest, the system was as likely to free the guilty as to convict the innocent; and in the hands of priests with an axe to grind, it could be even more arbitrary. So great a discretion in the hands of clerics meant that secular rulers were often suspicious of the system but during the twelfth century the problem became acute. For ordeals finally began to operate against the interests of Catholicism itself.
The late medieval Church was corrupt as old cheese, filled with drunks and fornicators who expected congregations to subsidize their sins, and countless reformers had begun to emerge by the twelfth century. From the Church’s point of view their prescriptions could only worsen the rot. Henry of Le Mans roused rabbles across eastern France for three decades after 1116, with fervent sermons that condemned rituals ranging from baptism to prayers for the dead – and, implicitly, rejected the need for a clergy at all. Peter of Bruis simultaneously led riotous mobs through the south of the country, urging his followers to munch meat on Fridays and make bonfires of their crucifixes, until outraged opponents burned him alive in one of his blasphemous blazes during the early 1130s. Most ominous of all was a philosophical tradition known as dualism. It had been incubating among Christian communities in the Balkans for several centuries and now began to spread through western Europe via the ports of southern France – and it took issue with the Church on the nature of evil itself.
The dualists called themselves Cathars, after the Greek word for purity, and their challenge to Catholicism was profound. Whereas Catholic scholars would be content to spend lifetimes trying to work out why a benevolent and omnipotent God seemed so tolerant of unpleasantness on earth, the heretics plumped for a very simple explanation: that He had no choice. The world in its entirety, they believed, lay firmly under the control of Satan and life amounted to an unhappy moment of incarceration within a tomb of flesh. The soul’s salvation demanded abstention from sex, meat, and dairy products, ideally in person but alternatively through one of the Cathars’ abstemious clerics. Those who grasped the truth and confessed their creed at the blissful moment of death could expect an eternity of ethereal perfection.
The Church was not impressed. It took grave exception to the suggestion that its theology was a delusion founded on a mistake. And although it had its own impressive traditions of self-mortification – running from Origen, a founding father who had castrated himself for love of the Lord, through innumerable pillar-squatting and thorn-bush-dwelling hermits – it had by the twelfth century become extremely reconciled to earthly things. Church propagandists were soon recycling hoary myths of cannibalism, bestiality, and promiscuity that Roman authorities had once used against the early Christians, while Pope Lucius III ordered every bishop in 1184 to smoke out the heretics in his diocese by way of an annual dragnet. The unbelievers continued, however, inexorably to advance. By the end of the century, Catharism was running Catholicism a close second across much of northern Italy. In the Languedoc, a politically volatile region of southern France, there were large pockets where it was not so much a heresy as the orthodoxy.
The crisis came to a head with the advent of 37-year-old Lotario de Conti to the papacy in 1198. The youngish Lotario took the name of Innocent III and a contemporary fresco painting shows him to have a ruddy baby-face, but he was in fact about as ruthless and astute a politician as would ever occupy the Holy See. Soon after his accession, he wrote that the relationship between royal and papal authority resembled that of the sun and the moon – and the papacy did the radiating rather than the reflecting. He had his eyes on a prize: a world that owed its primary allegiance not to kings but to God, and more specifically, to His earthly representative. In pursuit of his vision, Innocent would blast seven kings and two emperors with excommunications and interdictions during his eighteen-year pontificate. But he was also honest enough to recognize that the Church was as much part of the problem as its solution. In a series of letters, he condemned his own bishops for whoring, hunting and gambling while heresy had spawned, slumbering like dogs too dumb to bark – and he now turned, at last, to the challenge that others had spent decades avoiding.
The first element of the counter-attack was put in place over the winter of 1205-6, when Innocent granted an audience to a charismatic Castilian in his mid-thirties called Domingo de Gúzman. The Spaniard, who dreamt as fervently as any heretic of pain and poverty, had already spent time preaching against the Cathars and he had come to Rome hoping for permission to convert infidels on the Mongol fringes of eastern Europe. Innocent saw in his gleaming eye an energy that was needed closer to home. The pontiff sent him straight back to the Languedoc. Domingo returned to find that monks from the wealthy Cistercian order still in slothful charge of the Church’s anti-heresy drive, but he was soon co-ordinating a mission that would transform Catholicism as much as it confronted its heretical opponents. Ostentatiously humble and tirelessly willing to debate any Cathar into the ground, he inspired an increasing number of acolytes – the Dominicans – who would become the spiritual shock troops of Catholic resurgence. The battle for hearts and minds had begun.
At the same time, back in the Eternal City, Innocent was busily exploring the possibilities of a more conventional conflict. Secret requests to King Philip Augustus of France to launch a crusade against the Cathars came to nothing however, the French monarch pleading a prior engagement to destroy King John of England, and Innocent hesitated to sponsor unilateral military action against a nominally Christian region. But Domingo’s disputations and Innocent’s hesitations then came to a sudden end.
On 13 January 1208, one of Innocent’s legates, awaiting a ferryboat on the banks of the Rhône, was murdered by a horse-borne killer. The rider, who ran a sword through his victim’s back, instantly galloped back into the anonymity from which he had swooped, but his bull’s-eye had consequences as momentous as those of any other homicide in history. A contemporary account describes the crisis council that Innocent now convened. Between the stone pillars of St Peter’s, surrounded by a circle of twelve cardinals, he called down a curse upon the assassin and snuffed out a candle, before demanding in the gloom what was to be done. One of his most trusted lieutenants, Arnold of Cîteaux, stood next to a pillar with head bent and then raised his eyes towards Innocent. ‘The time for talking is over,’ he replied. Innocent, his chin in one hand, nodded – and then declared, for the first time in Christian history, a crusade against an enemy within the Church itself.
Greedy barons, eager to participate in a papally sanctioned rampage through the wealthy Languedoc, contributed thousands of troops to the army that set off from Lyons in June 1209. The fighting would last two decades, but the force faced its first test just a month later, at the Cathar stronghold of Béziers. The city’s fate was emblematic of the mentality that had produced trial by ordeal, and constituted a suitably sanguine curtain-raiser to the four centuries of religious zealotry that were about to engulf Europe. While the soldiers prepared for a lengthy siege, setting up their catapults, tents, and latrines on the plains around the city, a group of kitchen boys mounted a quixotic assault on its walls. They somehow broke through. Within minutes, crusaders were pouring into the breach and Arnold of Cîteaux – told that it was impossible to distinguish Catholic from Cathar – was asked for his orders. ‘Slay them all,’ he reportedly murmured. ‘God will know His own.’
The news from Béziers overjoyed Innocent – who postulated that God had deliberately held back from destroying its residents with the breath of His nostrils in order that the crusaders could earn salvation by exterminating them personally – but no Catholic of his intelligence trusted in the sword alone. The Church needed a procedure that could detect the canker before it took hold, and that was a question of law rather than war. Innocent was never likely to think highly of trials that entitled his priests to extort several shillings for boiling a kettle, and having studied law at Bologna and theology at Paris, he would probably have been aware of Peter the Chanter’s theoretical critiques of trial by ordeal. But the most decisive argument was almost certainly a pragmatic one. A suspected heretic would escape punishment if acquitted. Innocent was too hard-nosed a pope to leave the future of his Church to the vagaries of divine intervention.
The papal interest in reform was already evident. Innocent had previously curtailed the use of compurgation in Church disciplinary cases, and in 1199, had approved a novel way of proceeding in criminal cases – per inquisitionem. The new technique entitled judges, in suitably clear cases, to launch inquiries of their own motion. That was, pointed out the pontiff, no more than God had done at Sodom and Gomorrah. The reform was a sign of things to come – and they came at the Fourth Lateran Council of November 1215.
The Council, which lasted three weeks, was an assembly of about four hundred bishops and over a thousand abbots, ambassadors, priors, and proxies from every country in the Catholic world. It was one of the grandest gatherings that Europe had ever seen, a fiesta of fireworks and parades so raucous that more than a few visiting pilgrims were trampled to death. But amidst all the excitement, Innocent remained firmly in control. Seventy reforms were presented to the delegates, for approval rather than debate, and they left few abuses unaddressed. As part of a crackdown on clerical misbehaviour, priests were forbidden from throwing dice, watching clowns, and wearing pointy-toed shoes. Princes were instructed to make Muslims and Jews wear unusual clothes, because too many Christians had been having sex with them and then claiming not to have noticed the difference. Every Catholic was required to make confession at least once a year, on pain of excommunication and burial in unhallowed ground. And tucked away in the package was Canon 18, which prohibited priests from blessing ordeals by water and fire. On 30 November, Innocent exposed a chunk of the True Cross for the delegates’ adoration and sent them home. It would take several years for the reforms to percolate through the continent, but the deed had been done. Since ordeals could not occur without priestly participation, European criminal justice had been transformed for ever.
A thought-provoking way of appreciating the significance of 1215 is offered by Lewis Carroll’s Alice’s Adventures in Wonderland. As any once well-read child will recall, the tale concludes with a trial at which the Knave of Hearts is accused of stealing the Queen’s tarts on a summer’s day and making good his escape. After witnesses testify that jam tarts are made of pepper and accuse the Knave of failing to sign a poem that he did not write, the proceedings culminate in a moment of high drama. The Red Queen, responding to her husband’s suggestion that the jurors consider their verdict, splenetically insists that he has it backwards. ‘Sentence first –,’ she screams, ‘verdict afterwards!’ The merest infant knows that she is in fact the one who is wrong; Alice herself is so exasperated by the illogic that she brings down the house of cards, and wakes from Wonderland to boot. But there are many times and places where the distinction between sentence and verdict has been far less clear.
Wrongdoing in non-Western cultures has often been tackled by rituals that have assumed guilt as much as they have investigated it. Among nineteenth-century Angolans, to take just one example, the fact that a woman was eaten by an alligator while her two companions survived could be regarded as a sure sign of sorcery, and a hearing might be held simply to establish which of the survivors had worked the magic. The pre-modern Western world blurred the distinction between investigation and verdict even more comprehensively. Ordeals and compurgation combined them into a single ritual that operated as much to discover if a wrong had occurred as to establish a suspect’s responsibility for it. The idea of distinguishing the two issues was so alien to Dark Age thinking that lawyers had not even possessed a term to describe the process of weighing up evidence: the only one in use was probatio, or proof. But in the mid 1200s the word triatio entered the legal vocabulary of Christian Europe for the first time. Whereas the Dark Ages had tackled mischief with magic, through pleadings that clashed like mighty spells and rites that unlocked the secret will of God, the Western world had recovered the option of holding an inquiry.
The new faith in human scrutiny would also encourage tremendously significant developments in the field of moral philosophy, and few thinkers were more seminal than a pensive fellow called Anselm, sometime Archbishop of Canterbury. In the 1090s, he set to wondering why God had thought it important to manifest Himself in human form. As his inquiries proceeded, he found himself puzzled how it was that humanity could be absolved for murdering Jesus – for although crucifying the Messiah seemed a conclusively evil thing to do, Jesus himself had asked that his killers be forgiven. Anselm, committed like any good eleventhcentury scholar to the principle that there was a reason for everything, pondered the text until he realized that the answer was staring him in the face. Christ himself had argued from the cross that his killers deserved mercy ‘for they know not what they do’. Although the plea is a reminder that God the Father had regularly exhibited a more draconian stance, the insight set great chains of reasoning rattling through Anselm’s mind. ‘Had they known it, they would never have crucified the Lord’, he mused, before explaining that, ‘A sin knowingly committed and a sin done ignorantly are so different that an evil…may be pardonable when done in ignorance.’
The belief that people deserved condemnation only if they understood what they were doing was not new. Adam and Eve had established the moral relevance of knowledge, and peoples from the Babylonians onwards had taken the view that intentional wrongs were at least sometimes more enormous than accidental ones. Coming at the end of the Dark Ages, Anselm’s distinction between sins deliberate and ignorant was, however, a radical reassertion of the importance of choice. Thinkers around the continent would soon follow his lead, and the consequences would be far-reaching. Theologians would build on it to develop a concept known as the canonical theory of culpability, which held that guilt depended on a sinner’s state of mind. Lawyers would then argue on the same basis that justice demanded not just an inquiry, but one that could establish what a person thought.
All the changes, like Innocent III’s abandonment of fire and water ordeals, were the product of a tide rather than a tsunami, and their impact on Europe’s judicial systems would be correspondingly gradual. Compurgation would linger for several hundred more years as a way of resolving some civil disputes. The belief that God watched over criminal justice would see suspected witches swum in water four centuries after 1215, while trial by battle remained a legal option in England until 1819. The ordeal of the bier, whereby accused murderers touched their supposed victims and faced condemnation if the corpse bled anew, was arguably most tenacious of all. It was last seen in 1869, when two hundred people were paraded past two bodies in Lebanon, Illinois, in the hope that the cadavers – or, perhaps, the killer’s own sense of guilt – would identify the murderer.
The response to Innocent’s ruling would, however, be both profound and permanent. As Chapter 3 will show, judges on the small island of Britain would simply adapt the old oath-taking rituals and make jurors out of conjurors. On the continent the revival of rationalism and Roman law would lead to root-and-branch renewal of the law. Innocent III had already approved a ruthless model for judicial reform, based on God’s activities at Sodom and Gomorrah. The once imponderable power to judge right and wrong was being arrogated on behalf of lawyers, on the assumption that sufficiently rigorous intellectual inquiry would produce both truth and justice. In an age when evidence and intention were becoming increasingly important, those lawyers would formulate techniques capable of examining not only what people had done, but also what they had thought. Defendants had been tormented by conscience at least since the time of Socrates, but the idea that judges too could explore the secrets of the criminal heart represented an unprecedented extension of official power. The Inquisition was dawning.
2 The Inquisition (#ulink_859b1e7e-c7a4-5398-9701-cde845a060bf)
‘My position is becoming more and more difficult.’ ‘You are misinterpreting the facts of the case’, said the priest. ‘The verdict is not so suddenly arrived at, the proceedings only gradually merge into the verdict.’ ‘So that’s how it is’, said K., letting his head sink.
FRANZ KAFKA, The Trial
The disappearance of ordeals created a legal vacuum, but within two decades the papacy that had abandoned them was rushing to fill it. Justice had previously rested on a belief, common to all participants, that the performance of certain rituals would automatically unlock the judgments of God; but the powers to inquire and judge would now be placed firmly in the hands of human officials. In the name of stamping out heresy, the Church also invented ways to explore the minds of those it suspected. At a time when scholars were reasserting a link between the state of those minds and sinfulness, wrongdoers would be made to internalize the reasons for their condemnation and to display in public their obedience to the rules. Communities had expected submission from criminals since the time of Socrates, but willing degradation would now attain a status that it had never previously possessed. The confession was born from the Church’s war on heresy – but lawyers soon fetishized it as a mark of official power, and developed techniques to extract it that would outlast by centuries the threat that they were theoretically intended to meet.
The machinery of repression available to the Church in the early 1200s had been extremely lacklustre. Clerics had been too complacent to hunt down its enemies. Trial by ordeal was too irrational to locate them. And even if a bishop got round to convicting a heretic, the only punishment he could impose was excommunication and denial of Catholic burial, a fate unlikely to disturb the repose of any self-respecting apostate. Innocent III had cleared the way for reform by abolishing ordeals and establishing orders of monks who would report directly to the Holy See, but when he died in 1216 the most fundamental problem – the papacy’s lack of muscle – remained unresolved.
That was about to change. In 1232, Pope Gregory IX persuaded Emperor Frederick II of Germany that as a good Catholic, he should instruct his judges to burn heretics as and when officers of the Church identified them. He simultaneously advised monks at the recently established Dominican friary at Regensburg to get identifying. Gregory’s relationship with Frederick was always precarious, and it collapsed in 1237, when he denounced his erstwhile ally as ‘a Beast…with the feet of a bear, the mouth of a raging lion, and the [limbs] of a leopard’, but by then the dalliance had already borne fruit. And its offspring was the papal Inquisition.
It would be several decades before the system reached maturity, but the template was established within months of Frederick’s agreement with Gregory. Conrad of Marburg, a gaunt and zealous priest who rode about on an ass, had been snooping around the Rhineland on Rome’s behalf for several years, and he now began to send back some alarming reports. Although the only sectarians present in significant numbers were the Waldensians, whose heresy was essentially to trudge around without shoes and preach that clerics would do well to do the same, Conrad claimed to have encountered practices far more troubling. The region was infested with people who celebrated Lucifer as the true creator, he warned. They believed, among other outlandish things, that the Eucharist should not be swallowed but spat into a latrine. Converts were initiated at meetings attended by the Devil himself, who generally assumed the form of a toad, a pale-skinned man, a goose, or an immense black cat with a stiff tail. After kissing his anus, the heretics would extinguish the candles, fumble for each other’s genitals, and embark upon an orgy that ended only with another hellish manifestation, this time of a character with loins as furry as a feline and chest more radiant than the sun.
The claim replicated rumours that had been circulating about religious deviants since Roman times, and most historians agree that the tales of Luciferan worship and sexual free-for-alls bore about as much relation to reality as the man with the furry loins. But whether it was malice or mistake that inspired Conrad to his discoveries, Gregory was appalled – and, for the first time, in a position to take action. He urged his emissary to gather some evidence, and Conrad threw himself into the task with grim enthusiasm.
Travelling from town to town in the company of two sinister sidekicks – a certain Conrad Torso and a character with one arm and one eye known only as Johannes – he was soon finding heretics wherever he looked. As the baleful trio progressed, shaving the heads of suspects who named their accomplices and incinerating those who did not, accusations ricocheted ever higher up the social scale. In 1233, Germany’s bishops and nobles finally realized that if they did not stand together, they would burn separately.
The showdown occurred at Mainz in July, when Conrad of Marburg summonsed Count Henry of Sayn to answer reports that he had been seen riding a giant crab. Sideways motion was, symbolically speaking, a sure sign of heresy and the charge was a grave one; but the city’s clerics and aristocrats stiffened their spines and collectively testified to Henry’s piety. Conrad’s witnesses, sniffing the wind, admitted that they might well have been mistaken about the crab. The inquisitor dropped his case, vowing revenge, but the game was up. As he trotted furiously back to Marburg he was murdered on his ass, and his henchmen only outlasted him by a few months. One-armed Johannes was last seen in Freiburg, oscillating from the end of a lynch mob’s noose, while Conrad Torso, evidently more eager than authoritative, was sliced to ribbons in Strasbourg by the first person he summonsed.
Pope Gregory, infuriated with his clergy, raged that Conrad’s assassination was a ‘thunderclap that had shaken the walls of the Christian sanctuary’. The bishops had, once again, obstructed a papal attempt to get tough on heresy. But their power to do so was about to be drastically curtailed. Conrad’s adventures confirmed that an alliance between agents loyal to the pope and secular judges could potentially work wonders, and although Gregory’s relationship with Germany’s emperor remained fraught, France was nurturing a monarch with whom the papacy would be able to do far better business. Louis IX had been under papal protection since the death of his father in 1227. By the time he reached his majority in 1235, Conrad of Marburg would have gained a redoubtable successor.
St Louis, as he would one day become, was a gangly, smooth-featured and prematurely balding young man, but the callow physique belied a prodigious faith. He delighted in dining with beggars. Few were the lepers whose feet he did not stoop to wash. And notwithstanding the occasional impulse to abandon his throne for a monastic cell, he wielded the sword of righteousness as surely as he loved his fellow man. It was better to disembowel Jews than dispute with them, he proposed, while blasphemers in his realm were condemned to be branded on the lips or garlanded in pig entrails. It is perhaps little surprise that when Gregory suggested, in the early 1230s, that France could do with some Dominican inquisitors, Louis accepted with enthusiasm.
Louis’ eagerness was motivated primarily by piety, but politics also played its part. Forces loyal to the Church had recently won a final military victory in the quarter-century crusade against the Cathars, and the destruction of the Languedoc offered unparalleled opportunities. The heretics, knights, and troubadours of the region had always been a little too lively to be loyal, but the smoking battlefields that remained looked ready for incorporation into France proper. In a deadly pas de deux with Gregory IX, Louis therefore despatched his own judges to join Gregory’s monks in asserting royal control over southern France.
The consequences would be far-reaching. Louis would always be at least as concerned to crack down on official abuses as to impose his will. Canonical law could be no less benign, with scholars finding the basis for a whole catalogue of defendants’ rights in Justinian’s Digest and the Old Testament. But as the first papal inquisitors arrived in southern France in 1234, lighting execution pyres that were soon roaring as far north as Flanders, the structure of customary and canonical law began to buckle. The squads of young monks, faced with resistance and riots, were soon translating theoretical safeguards into practices of military efficiency. The idea that no one should be forced to incriminate himself or herself, in support of which canonists had pointed to the silence that Jesus permitted Judas, became increasingly illusory. The notion that some matters were best judged by God, exemplified by Joseph’s decision not to shame Mary by way of public divorce, similarly eroded. As humility and mercy evaporated, suspects were instead arrested on the strength of anonymous denunciations, denied legal assistance, and made to state on oath what they thought might have been alleged against them. Stings and bugging operations were used, with agents provocateurs encouraging malcontents to share their thoughts while hidden scribes jotted down every word. The powers claimed were as hygienic as they were punitive. Heresy was conventionally regarded as a disease, and just as the Book of Leviticus had once prescribed the destruction of buildings that harboured pestilence, the houses in which heretics had met were soon being demolished as a matter of course.
The effect was to legalize terror, and a whiff of the fear that swept the Languedoc still emanates from a story recounted about Raymond de Fauga, a Dominican appointed to the bishopric of Toulouse in August 1234. Told that the dying matriarch of a leading Cathar family was deliriously calling for a priest to console her, he rose from his lunch and marched to her house. Shocked relatives were pushed aside as he strode to her deathbed, where the feeble woman obliviously recited her beliefs and offered the traditional Cathar prayer that her life come to a good end. On de Fauga’s invitation, she then confirmed her creed – whereupon he rose to his feet, declared her an impenitent heretic and sentenced her to death. She was lashed to her bed, which was carried to a meadow outside the city gates and set ablaze. The Dominican chronicler who recorded the episode – with pride – observed that de Fauga and his companions then returned to their refectory and polished off their interrupted lunch ‘with rejoicing’.
By the 1240s, inquisitors had reconsolidated Catholic dominance in the cities of the Languedoc, and as their successors spread across the countryside of southern France and northern Italy, Europe’s legal tradition began to undergo permanent change. In 1252, Pope Innocent IV published a bull ‘On Extirpation’ (Ad extirpanda), which authorized the use of torture against ordinary citizens – a practice permitted under Rome’s Emperor Justinian, but seen only exceptionally among barbarian tribes in the seven or so centuries subsequent. A lingering sense that the Church ought not to be in the business of bloodshed led Innocent to stipulate that inquisitors should subcontract interrogations to secular authorities, and major haemorrhages, amputations, and death were to be avoided – but the squeamishness would not last. Over the next decade, papal inquisitors were authorized to conduct their own questioning, and to absolve each other if, in their zeal, it generated too much mess. Their unaccountability increased with their discretion, and by 1262 they were almost literally a power unto themselves – capable even of reversing a bishop’s sentence of excommunication if God’s work so required.
Secrecy simultaneously entered the trial process for the first time. Whereas Roman law, ordeals, compurgation and canonical law had all regarded openness as essential to justice, the first legal manual for Languedoc’s papal inquisitors, written in 1248, instructed them to ignore the old rule that witnesses’ names be disclosed. Investigators would instead issue blanket summonses to every male over fourteen and female over twelve in a region, who presented themselves for questioning in public, but were questioned in private. As though to compensate for the change, judgment was simultaneously transformed into a magnificent ceremony, usually staged in the square of the largest regional town, at which church officials would broadcast the verdicts reached and penances imposed. Those who had attended a Cathar service might be sent on a pilgrimage, for example, or instructed to sew a large yellow cross onto a pair of overalls and wear it for the rest of their lives. More serious offenders would be told to present themselves to their priest with willow switch in hand and ask for a public flogging. Particularly incorrigible hotheads and proselytizers might be sent to close confinement for a decade or two.
At the very end of the list would be those who refused to admit their errors – who were, in the scatological language favoured by the Inquisition, to be ‘cut off like an infected limb’ because they had ‘returned to their heresy, like a dog to its vomit’. The rules that prevented clerics from spilling blood would, even in the war on heresy, have to be observed. The bishop or inquisitor would therefore ‘relax’ impenitents into the hands of secular courts and ‘affectionately request’ the court to be ‘moderate’ in its sentence. The double-talk was as psychotic as it sounds. Moderation involved chaining the convicts to stakes while piling logs up to their chins, burning the bodies for hours, and finally smashing the carbonized skulls and torsos with a poker. And although zealous papal inquisitors would, for long centuries, shelter behind the fiction that the Church longed to re-embrace its naughty children while someone else insisted on killing them, they were swift to ensure that no one misunderstood the meaning of relaxation. Anyone who assisted excommunicated heretics – by, for example, arguing that they were innocent – became personally liable to condemnation. According to a compilation of German laws written in the 1230s, any judge who was too moderate towards a relaxed heretic was liable to ‘be judged…as he himself should have judged’ – or, less euphemistically, to be burned to death.
In view of the Church’s institutional psychopathy, it is unsurprising that popular myth, bolstered by several centuries of anti-Catholic propaganda, now recalls the Inquisition as a blood-drenched threshing machine. Uneven record keeping and Vatican secrecy mean that no reliable estimate of its death toll is actually possible, but the total number of certain executions in fact falls no higher than the low thousands. Hundreds of thousands certainly passed through its mill, but it was more insidious than murderous, designed to recover sheep rather than to annihilate them. Anyone who publicly repudiated heresy was given at least one opportunity to return to the fold. Imprisonment was the preferred penalty even for the recalcitrant. At the same time, although it killed relatively few, it released even fewer. Indeed, it barely comprehended the concept of an acquittal. To be suspected of heresy was heretical in itself, and relapse was a capital offence, with the result that arrest was tantamount to a suspended death sentence. Release invariably required a display of repentance, whether the wearing of a cross, the taking of a beating, or departure on an enforced pilgrimage. Even those condemned to death were expected to show their submission. After being compelled to walk to the stake or gallows in a white shift, clutching a candle of penitence, they were offered the last rites – one final opportunity to submit to the Church in whose name they were being killed.
The Inquisition succeeded in the short term. Orthodoxy was stamped back onto the towns of the Languedoc, and rural communities slowly gave up their heretical ways. Die-hard Cathars melted away into the towns of Germany and the mountains of the Savoy, leaving behind only the crenellated ruins that still litter the region. The repression arguably generated considerably more heresy than it ever destroyed, for the refugees maintained a tradition of dissent that would eventually fuel the Protestant Reformation; but the effect of their departure was to defuse the crisis that had brought the Inquisition into being.
Its techniques would not come to an end however. A brood of baby inquisitions would now hatch from its belly as the kings and nobles of Europe realized just how useful the machinery devised by Pope Gregory IX and his successors could be. The Spanish Inquisition has entered history as its truest successor, thanks to the cruelty of its fifteenth-century anti-Jewish persecutions and its more recent activities on Monty Python’s Flying Circus; but it was neither the first nor the most influential of the offspring. It was instead in the national courts of France and then Germany that the discomforting procedures pioneered by men like Conrad of Marburg would take deepest root.
When King Louis IX agreed with Gregory IX to import Dominican inquisitors into his realm, it was not just the battle against heresy that was transformed. At a time when ordeals had just been abandoned, his own officials needed a new way of deciding cases, and they were soon taking great leaves from the books of the Dominican inquisitors. It was not long before witnesses and defendants were forced to answer questions on oath. In 1254, two years after Pope Innocent IV had authorized the use of torture, Louis followed suit in that regard as well. Like the papal tribunals, his courts would always try to strike a happy medium between maximal pain and minimal bloodshed. Water torture, sleep deprivation, and prolonged isolation were always the most popular methods. Some courts preferred to insert hot eggs under suspects’ armpits. The strappado, a rope-and-pulley apparatus used to raise and drop a suspect from the roof, would become ubiquitous.
But all the cross-fertilization had a paradoxical effect. As lessons derived from the papal Inquisition fortified France’s royal courts the kingdom was becoming one of the most organized states in Europe, but the same process made those courts increasingly likely to tread on papal toes. Conflicts between kings and popes were nothing new, but at a time when national loyalties were strengthening, the personal rivalry was escalating into a struggle between Church and State. Thirteenth-century popes fought dirty – most spectacularly in 1268, when papal scheming resulted in the beheading of Conradin Hohenstaufen, the 15-year-old heir to the German Empire, whose death condemned Germany to five centuries of disunity – but in France the papacy would now meet its match. Its nemesis would be Louis IX’s grandson, Philip the Fair.
Philip, just seventeen when he assumed the French throne in 1285, dreamed as avidly as his grandfather of eradicating the infidel. Like Louis, he too had visions of a Christian realm that would stretch from Paris to Jerusalem. But a deep temperamental difference distinguished the two men. Whereas Louis had placed both body and country at the service of the pope, Philip saw the Holy See as an obstacle to his ambitions rather than the inspiration for them. It was an attitude that always boded ill for relations between Paris and Rome, and at the end of 1294, the route to Christian harmony became rocky indeed. For the king who would be pope found himself confronted by a pope who would be king – Pope Boniface VIII.
Boniface was a worldly man, as pontiffs go. His fondness for the ladies was such that he married one and fathered another; while his affection for the men was so notorious that rumours of pederasty would follow him far beyond the grave. He assumed the papacy only after encouraging his predecessor, Celestine V, to resign – whereupon he installed the 81-year-old hermit, who had not wanted the job in the first place, into an oubliette to die. He was never going to take kindly to a whippersnapper like Philip, and the tensions began rising almost immediately. The French king, whose realm constantly teetered on the brink of bankruptcy, had begun to extort money from the country’s monasteries in order to finance a war with England, and in 1296 Boniface ordained that monarchs who taxed clerics and clerics who paid up were ipso facto excommunicated. The bull was meant as a shot across the bows and was reversed a year and a half later, but Boniface followed up by elevating Louis IX into St Louis, canonizing a French king for the first and last time in Christian history. Recognition of the grandfather was no honour to the grandson – and it was not meant to be.
Battle was about to begin – and the weapons of choice would be legal ones. Canonical law of the late thirteenth century was still Church property, its mysteries guarded by monks and arbitrated by bishops, and Boniface was regarded by many, not least himself, as the finest jurist of the age. Allegiances across Europe were switching from papacy to nation, however, and under the patronage of Philip, France’s lawyers were emerging as a distinct and powerful social class. The effect was that whereas Louis had borrowed the legal tools developed by the Church, Philip deployed them – and his target was the Holy See itself.
Skirmishes began when he sent Guillaume de Nogaret, the most trusted of all his legists, to attend a jubilee that Boniface held at Rome in 1300. Nogaret, a man of humble and possibly heretical origins who had several anti-papal chips on his shoulder, would prove himself a worthy champion. According to his own account, he took Boniface aside as soon as he arrived and warned him, sotto voce, that his simony and extortion – along, presumably, with several more or less unmentionable vices – had to stop for the sake of the Church’s good name. An outraged Boniface had challenged Nogaret to repeat his words before witnesses which, on the Frenchman’s own proud recollection, he promptly did. Philip himself increased tensions in the following year. Eager to reassert French control over the Languedoc, he had one of its key bishops charged with sexual and spiritual offences – and to compound the insult, informed Boniface that he had been driven to act because the cleric had defamed the pontiff by calling him Satan incarnate. Boniface returned fire with a bull in 1302, in which he ‘declare[d], announce[d] and define[d]’ that any ‘human creature’ who refused to submit to papal authority could expect to spend all eternity in hell. Lest there remain doubt about which human creature he meant, he then let it be known that his French ambassador was instructed to excommunicate the French king.
The thunder hung potential throughout the summer of 1303. Aware that a final conflict might be looming, Philip’s lawyers drew up an indictment against Boniface in June, packed with every charge that their hostile, fertile minds could generate – from diabolism and sodomy to materialism and the neglect of fasts. Boniface thereupon drafted a formal document of excommunication. If published, it would have released Catholics everywhere to perpetrate treason and war on the French monarch at their pleasure. But against the power to damn a man till the crack of doom, Philip possessed a weapon that was hardly less potent: Guillaume de Nogaret.
Boniface’s bull was due to be nailed to the doors of the cathedral at Anagni, a small hill town where he maintained a sumptuous palace, on 8 September. It was early on the morning of the seventh that Nogaret arrived. He was carrying his indictment – and was accompanied by 1300 men. As bells rang and dogs barked, the invaders stormed through the narrow alleys, but it was not until dusk that the heavy oak doors of Boniface’s inner chamber were finally broken down. A certain degree of confusion has come to surround the events that immediately followed. Some say that Boniface was found atop his throne in vestment, crucifix and triple-tiered tiara, defiant and ready to die for the honour of his office. Others suggest he was trembling like a human jelly. All agree, however, that Nogaret eventually strode through the splintered door to inform him that, having failed to mend his sodomitic ways, he was required to attend at Lyons for trial.
Boniface in fact survived to be escorted by his allies back to Rome, but the shock was all too much. The man who had once asserted supremacy over the entire human race shrank into a wraith and lived for just five more weeks. He died in his sleep, crumpled like a foetus with both fists in his mouth. Pursuant to legal theories that will be considered more closely in Chapter 5, Philip thereupon campaigned to have his body put on trial and burned at the stake.
The conflict exemplified by the struggle between Philip and Boniface would recur across western Europe. As inquisitorial methods were adopted by secular rulers, those rulers seized control of the system from its creators. Christianity and canonical law would continue to influence continental legal systems until the late eighteenth century, but kings and princes would already have gained the upper hand over papal inquisitors by the fifteenth. The fact that legal procedures were secularized would not, however, make them any more humane. Just as monks and canonists had redefined the law to pursue the Church’s war in the early 1200s, secular lawyers would reinvent it on behalf of their masters to justify use of the rack, the thumbscrew, and the strappado for centuries.
The question of evidence would generate some of the most inventive theories of all. In an era of trials by ordeal and compurgation there had been no need to consider how something should be proved, since the defining event – a miracle or the swearing of sufficient oaths – either took place or it did not. The rediscovery of Justinian’s Digest in the late eleventh century had, however, shown Europe’s lawyers that the Romans had differentiated between proofs and the verdict, and as witnesses entered the scene following the abolition of ordeals, the status of their testimony began to trouble the canonists. The primary problem was that, despite the rationalist aspirations of the age, no one possessed any systematic theory of how contradictory statements were to be weighed up. The Digest’s various recommendations – that judges pay heed to a witness’s social standing and manner of speech, for example – did not take matters very far. When lawyers then turned to chapters 17 and 19 of the Book of Deuteronomy – which required allegations to be proved by two respectable eyewitnesses – a new problem arose. Since the Bible said nothing about how to differentiate truth from lies, judges interpreted the two-witness rule literally. If two people swore to a fact, it was proved – conclusively. The injustice of that was apparent to many people even in the formality-obsessed thirteenth century, and dissatisfaction increased as inquisitors tried applying the rules to heresy. Eyewitnesses to disbelief were necessarily hard to find, and the most threatening heretics were in any event those who kept themselves to themselves. Proving their thought-crimes would require a theory more imaginative than one that depended on eyewitnesses.
The answer to the riddle would be the confession. Admissions have since become so routine a feature of Western criminal justice that it is hard to appreciate just how radical a shift took place during the mid thirteenth century, but the nature of that shift is well illustrated by Louis IX’s laws for southern France. Aware of the deficiencies of the two-witness rule, the king had ordered his judges never to convict on such evidence unless it was backed up by a confession. He was, however, as perturbed by wrongful acquittals as wrongful convictions – and he simultaneously allowed those judges to torture defendants who had aroused suspicion but refused to provide the confession that would be needed to convict them. The law that claimed to protect against unreliable convictions consequently became their primary cause. Within decades the confession was being promoted from a subordinate form of evidence to the regina probationum – ‘the queen of proofs’ – and self-condemnation would soon come to be revered as an almost immaculate guarantor of guilt.
The concept of the regina probationum owed nothing but its Latin to Roman law. It was also alien to the Old Testament – so much so that Maimonides, the foremost Talmudic scholar of the medieval world, declared conviction on the basis of a bare confession to be contrary to divine law. Confessions came to be exalted not because of ancient traditions, but because of seismic changes: a new confidence among political rulers that they could know their subjects’ secrets, and a new morality that was beginning to measure people’s culpability according to the words they uttered.
The tectonic movement occurred on a timescale that is better measured in generations than moments; but if a single occurrence could be identified as pivotal, it would be the Fourth Lateran Council of 1215. In the same set of canons that brought ordeals to an end, Pope Innocent III had commanded that all Catholics annually confess their sins on oath to a priest. The cleric was simultaneously empowered to forgive those who observed the obligation, while those who failed to do so were made liable to excommunication and unhallowed burial. It was a major change. Church thinkers had long agreed that salvation demanded contrition and many had even claimed for the Church a power to forgive sin. No one, however, had ever presumed to suggest that Christians had to verbalize their remorse to be saved – let alone that they had to do so in the presence of a priest.
Innocent’s innovation inspired considerable resistance among ordinary Catholics, and over the next few decades concerted efforts were made to persuade the flock that confession was in their interests. Gregory IX formally advised all doctors to recommend it to their patients, and chroniclers were soon extolling the new sacrament’s benefits. The most influential was a Cistercian monk called Caesarius of Heisterbach whose Dialogue of Miracles, written in the 1220s, would inform popular Christianity for centuries. Four of its twelve chapters were devoted to confessions, and they suggested that their power was prodigious indeed. A popular legend doing the rounds told how St Norbert had exorcized someone of a demon that insisted on revealing the adulteries of everyone around it, but Caesarius now turned the story on its head: he knew of one that had buttoned up simply because the adulterer concerned had confessed. Another fiend had positively lied to protect a girl’s reputation for chastity, so impressed was it by her decision to divulge her sexual history to a priest. Caesarius told of confessions so timely that they had saved vessels from sinking and rendered murderers fireproof even as the flames of their execution pyres were lapping around them. One ancient demon of which he had heard had been so awestruck by the aura of salvation emanating from the confession box that it had insisted on admitting every misdemeanour it had committed since tumbling out of heaven alongside Lucifer. Silence or equivocation, on the other hand, invariably attracted the attentions of less benign apparitions and might even inspire visits from the undead. The message was clear. Blabbing worked wonders, but verbal retention could end in disaster.
There are weighty philosophical arguments to support the belief that expressing responsibilities might lessen them. The insistence on verbalization has always risked robbing speech of its meaning however, and thirteenth-century jurists were soon treating confessions as symbols of guilt rather than methods of establishing facts. The canonical principle that defendants should not be compelled to condemn themselves was watered down to mean only that a forced confession had to be recited in court. It meanwhile became established that torture could be repeated three times. One Dominican inquisitor called Nicolas Eymeric argued in the late fourteenth century that each of the three sessions could itself be ‘continued’ indefinitely. By 1705, one lawyer would be basing his critique of torture on the magnificently metaphysical grounds that justice, like nature, abhorred infinity. Those who managed, despite everything, to hold out, were treated not as innocents but as culprits who had cheated justice, and were typically sent into exile or deprived of an ear on the basis that they deserved punishment for falling under suspicion in the first place. Jean Bouteiller, a jurist of the late 1300s, expressed the prevailing attitude when he advised that a suspect should only ever be released ‘conditionally’ because otherwise ‘it would seem that he had been held prisoner without cause’. His colleagues were evidently of a similar mind. The country’s first trial records, which detail more than a hundred cases from Paris between 1389 and 1392, show an overwhelming majority of defendants confessing and not a single one winning an outright acquittal.
Few trials better capture the shifting meaning of spoken guilt in early modern Europe than the 1440 prosecution of Gilles de Rais. Gilles, born in 1404 as heir to the fortune of three of the wealthiest families of France, enjoyed a youth that seemed charmed indeed for the troubled fifteenth century. At a time when his country was convulsed by a seemingly perpetual war and its nobility torn between those who supported the territorial claims of the English monarchy and the aspirations of the Dauphin, Charles VII, he gambled for high stakes – and won. In May 1429, fighting shoulder to shoulder alongside Joan of Arc, he helped achieve the victory at Orléans that turned the tide of the Hundred Years War. The triumph allowed the French pretender to be crowned at Reims Cathedral, the site of every previous coronation in French history, and his gratitude knew no bounds. Gilles was invited to carry the amphora of anointing oil – no insignificant honour, given that it had supposedly descended to earth on the wings of a heavenly dove – and Charles VII, weeping copiously, concluded the day by appointing him a Marshal of France. At the age of 24, Gilles had reached the top of the tree. The perennial curse of the early achiever is, of course, that all paths from the treetop go down. Even Gilles could hardly have guessed how far he would fall.
Whatever the passions that drove the young hero, they were soon taking him somewhere far from the battlefield. Gilles increasingly neglected his martial duties in favour of the priesthood, and with the war’s end in 1435 he endowed a chapel at his Brittany castle of Machecoul – complete with choir, portable organ, and a chapter of clerics outfitted in fur-lined silk and scarlet – and decided to reenact his most magnificent triumph as theatre in Orléans. It was a glittering train of some two hundred choristers, jugglers, pipers, fire-eaters, and astrologers that now snaked across the countryside – but a shadow was sweeping alongside. For as it moved, children vanished in its wake. Some were last seen taking the hand of rosy-cheeked crones. Others climbed onto strangers’ horses, never to be seen again. And Gilles was enjoying the road show so much that he turned it into a rolling tour.
Over the next few years, the darkness fell deepest around the gloomy towers and brackish moats of Machecoul, and never more so than in 1437, when two small skeletons were found inside the castle. Rumours were soon rife. Some claimed that Gilles was kidnapping youths to sell to the English. Others whispered that he was writing a book of spells with human blood. A few may even have begun to wonder why he had chosen to dedicate his chapel to the Holy Innocents – the infants slaughtered in their cradles by King Herod.
Such matters might ordinarily have come to nothing. Scurrilous tittletattle about the misfortunes of a few under-age peasants was never likely to touch the reputation of a nobleman in fifteenth-century France. The talk of diabolism was a little more risky, coming at a time when Europe’s witch-hunts were warming up, but invocation of demons still remained a popular hobby among French aristocrats. A discreet lord would have had nothing to fear. But discretion had never been Gilles’s strong suit – and incontinence would prove to be his downfall.
As he had traveled, staging miracle plays and mysteries and keeping his choirboys supplied with chalices, censers and pyxes, he had churned his way through the fortune that three bloodlines had taken centuries to accumulate. And in May 1440, hubris finally met nemesis. Having recently sold one of his last properties, a fortress at St-Étienne-de-Mermorte, to a certain Geoffrey le Ferron, he decided that he wanted it back. At the head of a posse, he stormed into its church brandishing a double-headed poleaxe and forced its priest – who was also le Ferron’s brother – to open the castle gates, before tossing him into its dungeon. It is hard to imagine an act of gratuitous violence that would have been better calculated to bring Gilles’s impunity to an end. Invasion of a church violated ancient privileges of the Bishop of Nantes. Geoffrey le Ferron was no mere castellan but treasurer to the Duke of Brittany. The duke was the only man below the French king to whom Gilles owed fealty, and was thus entitled to confiscate what remained of his vassal’s wealth if he was convicted of a felony. Gilles had finally found a mark to overstep.
By the early fifteenth century, the papal–national conflict had been unequivocally resolved in favour of secular rulers in France, and the bishopric of Nantes would now work loyally alongside the Duke of Brittany’s officers. Proceedings were launched in the episcopal court, and covert inquiries produced a secret report in late July. One and a half months later, ducal officers arrested Gilles along with two servants and two priests. Four days after that, on 19 September 1440, he was escorted into the great hall of Nantes Castle to be told that he faced charges of heresy. Gilles had doubtless come to terms with the fact that abducting a priest at poleaxe-point was going to require some penance, but when he was brought back to court almost three weeks later it became clear that the term ‘heresy’ covered a multitude of sins. Alongside sundry acts of impiety, apostasy, and sacrilege, the indictment alleged that he had made pacts with demons, and that he had sodomized and murdered some 140 children.
Gilles seems to have been unable quite to believe that the court was presuming to judge him for such trifles. He haughtily insisted on appealing, and when the judges told him that the request was frivolous, and ought to have been in writing anyway, he fell into a monstrous sulk. Even when the prosecutor swore four times to the truth of his indictment, he refused to speak. Five days later, the displeasure had hardened. Spitting invective at the bench, Gilles condemned his judges as ‘simoniacs and ribalds’ and announced that he would rather hang from a rope than plead to their charges. In the face of such defiance, they deployed the most powerful sanction at their disposal. They excommunicated him.
The judges knew their quarry. When Gilles reappeared two days later he was in tears, begging forgiveness for having questioned their right to try him and pleading for readmission to the Church. The clerics duly re-embraced him to the Church’s bosom, but made sure simultaneously to have him watch his servants and priests being sworn, in preparation for secret interrogations that were to take place over the next few days. The pressures on Gilles were mounting; but when the indictment was read aloud, he seemed strangely disengaged. He admitted borrowing a book that explained how demons might be persuaded to transmute base metals into gold, but made a point of insisting that he had returned it to its owner. He had employed several alchemists to freeze quicksilver, he accepted, but he was anxious to assert that he had neither invoked evil spirits nor made sacrifices to them. Of lost children, he spoke not a word.
The members of Gilles’s household were then interviewed – very probably, under torture – and, five days later, their statements were read to him. All described acts of diabolism and murder in chilling detail, and Gilles declined to challenge any of the evidence – but the court remained unsatisfied. It duly ordered that he be interrogated on the rack ‘in order to shed light on and more thoroughly scrutinize the truth’. Gilles, allowed a night to consider his position, decided that that would not be necessary. On the following afternoon, he made a full confession in his cell to four judges and the prosecutor, and was made to repeat it a day later in a packed courtroom. It was an extraordinary performance.
He began by asking that his words be published not just in Latin but also in French, in order that as many people as possible could learn from his mistakes. He implored his listeners to raise their children with good manners and virtuous habits, because he had been undone by an unbridled childhood. And he then confessed to the abduction and murder of ‘so many children that he could not determine with certitude the number’ in terms that, even six centuries distant, retain their power to appal. Alongside his servants and other companions, he had throttled his victims and hanged them from hooks, sodomized them and ‘ejaculated spermatic seed in the most culpable fashion on [their] bellies…as much after their deaths as during it’. He had stabbed and battered them, decapitating some, and while they were in their last throes, he had often ‘sat on their bellies and…laughed at them’. Once dead, he had ‘embraced them…contemplating those who had the most beautiful heads and members’, and had then torn open their bodies to ‘[delight] at the sight of their internal organs’.
Having dealt with the question of dead children, Gilles turned to diabolism – a subject on which he seems to have spent about four times as long – and admitted that he had often hired magicians to invoke demons. All were evidently con artists, warning him off at crucial moments and sometimes beating themselves up in locked rooms to prove the risks they were running, but although their dishonesty had eluded Gilles, his participation had been far from passive. He had once used blood from his little finger to write to a demon, he recalled. On another occasion, he had given a magician the hand, heart, and eyes of a young boy in a jar.
Gilles concluded with a plea to all fathers present not to tolerate sloth or fine dressing in their children, and a warning that his crimes were born out of an insatiable appetite for delicacies and mulled wine. By now in tears, there was just one other thing that he wanted to share. Temptation had been strewn across the path of his life, he admitted. It was only by virtue of his steadfast affection for the Church that he had lost neither body nor soul to the Devil.
Any confession made after the threat of torture in response to accusations by imprisoned accomplices has to be suspect, but Gilles’s words – oblivious as a psychopath’s and naive as a child’s – ring so true that they are almost impossible to disbelieve. The portrait draws from life rather than the formulaic fantasies of inquisitors. It does not depict an omnipotent diabolist, but a gullible fool. And the clinical descriptions of murder are not the words of someone who imagined what crime might be like. They are the recollections of a man who had watched children die.
Three days later he was convicted, excommunicated again, and – after another tearful display of genuflecting remorse – formally readmitted to the Church for a second time. Later that morning, he went to the secular court in order to receive his death sentence, and delivered a second public confession at the request of Pierre de l’Hôpital, the senior judge. De l’Hôpital advised him that his shame in this world would precisely alleviate the punishment he was owed in the next, and although there is little indication that Gilles was anticipating much divine retribution, de l’Hôpital was impressed by his contrition. So much so, indeed, that he granted him the greatest boon he could have extended. After pronouncing that Gilles was to be hanged and then burned, he specified that his corpse should be merely ‘embraced’ by the flames – in order that it could then be interred in Gilles’s church of choice.
Gilles, given one last night to make his peace with God, offered a final display of atonement, fifteenth-century style, at the gallows the next morning. Barefoot and clad in white, he exhorted the two servants who had helped him to throttle, disembowel, and sodomize unnumbered children to be strong in the face of temptation. He bade them au revoir instead of adieu, assuring them that their souls would be reunited at the moment of death, because no sin was unforgivable ‘so long as the sinner felt profound regret and great contrition of heart’. All were then hanged and the servants’ bodies, in keeping with their humble stations, were reduced to ashes. Gilles’s corpse, lightly singed, was borne away by assorted ecclesiastics and aristocrats for its honourable burial at Nantes Cathedral.
Gilles’s confidence might strike modern readers as bizarre, repulsive, or even blasphemous, but the scribes and judges who heard him were not just satisfied, but touched, by the piety they detected. A conventional explanation nowadays for their attitude would be that, just as the era was typified by a concern that sinners display signs of their shame, the inquisitorial system regarded the utterance of regret rather than inner remorse as the way to expiate guilt. That assertion does not, however, go very far. It was well-established Catholic doctrine by the fifteenth century that confessions were invalid unless accompanied by contrition, and the trial record itself indicates that at least some of Gilles’s judges wanted insights as well as words. While the witness statements were being taken, he was asked twice if he wanted to ‘justify’ his actions, or set out his ‘motives’, and at the time of Gilles’s first admissions in his prison cell, a particularly telling exchange took place. Pierre de l’Hôpital, Nantes’s senior secular judge, asked him at one point to say who had incited and taught him his crimes. Inquisitors routinely asked the question in the hope of identifying accomplices, but de l’Hôpital was after more than names. When Gilles replied that he had been ‘following his own feelings, solely for his pleasure and carnal delight’, the judge did not only express surprise, but also pressed on. He wanted to know ‘from what motives, with what intent, and to what ends’ the murders and sexual abuse had occurred. An explanation, he urged, would allow Gilles ‘to disburden his conscience, which most likely was accusing him’. The remark inspired indignation. ‘Alas!’ snapped the nobleman. ‘You are tormenting yourself, and me as well.’ The judge fired back that he was not tormenting himself, but wanted to know the ‘absolute truth’, whereupon Gilles brought the exchange to an abrupt end with a bare assurance that, ‘Truly, there was no other cause, no other end nor intention.’ Even de l’Hôpital was ultimately sufficiently impressed to grant his prisoner the privilege of a mere toasting, but he seems to have been struggling with ideas that are now as common as they were then inchoate: that defendants can reliably reveal their motivations, and that guilt should be measured by their willingness to do so.
The exchange also exemplifies another feature of the modern trial: the way in which it attempts to reconcile those being judged with those doing the judging, and the extent to which that attempt is so often doomed. No matter how much a criminal may want to explain, a court long to understand, and a grieving relative hope for resolution, the gap in most serious cases is all but unbridgeable. The most obvious reason is that no crime can be undone, but another is that no explanation can ever adequately pin down why one person breaks the rules and another does not. The excuses most commonly heard today – whether social deprivation, mental retardation, or pre-menstrual tension – are inherently no more plausible than Gilles’s claim that his murders were the fault of Satan, a wild childhood, and a predilection for mulled wine. Making the leap of imagination to empathize with a criminal is of course easy if one sympathizes with the crime concerned, but the mentality of someone who, say, dedicated a chapel to martyred children while slaughtering real ones is, for most people, about as unreachable as another mind can be. In such cases, the assessment that resonates truest to modern ears is one that Gilles gave long before his trial. He told a servant that he had been born under a star such that ‘nobody could know or understand the anomalies or illicit acts of which [I am] guilty’. And it explains nothing at all.
The concern to hear confessions was not the only feature of the Church’s battle against heresy that found permanent expression in the secular legal system of France. The country’s courts also became increasingly secret, just as the tribunals of the papal inquisitors had in the early thirteenth century. Inquisitorial judges opened their doors only when they were ready to present to the public the spectacle of a confessing defendant or, as happened rather more rarely, the mercy of the sovereign. By the close of the fifteenth century, they were interviewing witnesses in the absence of everyone but their clerks. Defendants meanwhile languished in custody except when it became necessary to confront them with their accusers or torture them; and defence lawyers, always rare, were formally excluded in 1539 from most stages of a trial, and absolutely barred in all capital cases after 1670.
Excluding the unlettered and the unwashed undoubtedly appealed to many lawyers then for the same reasons that secrecy still does to many people with power; but there was one notable critic. A judge from Angers called Pierre Ayrault, whose writings would influence generations of French lawyers, wrote a long work specifically on the topic in 1588, in which he complained that French justice had become like ‘a sacred mystery that is communicated only to the priest’. Its secrecy, which had been adopted out of ‘fear of the uproar, shouting and cheering that people ordinarily indulge in’, was a recipe for incompetence and error. Statements obtained during closed interrogations reflected the preconceptions of the legal official taking them rather than the meaning of the person being interviewed. Public trials, on the other hand, would serve to display the law at its most majestic. They would also make it more likely that a judge’s rulings were honest and reasoned.
The critique, developed at a time when political concepts like freedom of information and checks and balances still lay some distance in the future, was a perceptive one. The inquisitorial process, by concealing its officials from scrutiny, was inherently prone to corruption. The pernicious nature of the secrecy was, however, greater than Ayrault himself knew, for it could cloud the vision of even its greatest critic.
In August 1598, he was called upon to try a dishevelled and longhaired beggar in his mid-thirties called Jacques Roulet. Roulet had been handed into custody by one Symphorien Damon, whose statement set out how he had come to be arrested. Damon’s suspicions had been aroused when he saw the man lying on his stomach in a field for, upon being challenged, Roulet had stared at him malevolently and run away. He had seen him again shortly thereafter, alongside the mutilated body of a young boy and in the custody of four villagers. Everything else that Damon reported came from those four men; and if they ever testified, their evidence has been lost. He recounted how the peasants (one of whom was the dead child’s father) claimed to have chanced upon the body as it was being eaten by two wolves, and then to have spotted Roulet as they were chasing the beasts away. The coincidence had struck them as sinister, and their hunch was soon confirmed. Asked what he was doing, the beggar had said, ‘Not much’, but when they demanded that he reveal who had eaten the child, he had apparently confessed that he, his father, and his cousin had all been responsible. They had been wolves at the time. According to Damon, Roulet had even had long nails and bloody hands when arrested.
Attitudes towards lycanthropy in the late 1590s were in a state of flux. Although Christian scholars had insisted for centuries that werewolves were no more than an optical illusion – essentially because only God could turn humans into ravenous beasts and He had better things to do – the orthodoxy was under pressure. Lawyers, as usual, were at the forefront of the debate. The most eminent jurist in all France, Jean Bodin, had just written a witchcraft manual in which he argued that Satan did in fact enjoy the power to transform people into wolves. There is little reason to think that Ayrault subscribed to Bodin’s views, which were controversial even among his fellow demonologists, but the judge from Angers had a belief in the value of self-condemnation that was profound. In words that would be cited by French lawyers for the next two centuries, he wrote – in the same work that attacked his country’s legal secrecy – that the ultimate goal of criminal law was to ‘instil and engrave its fundamental principles on people’s hearts’. It was ‘not enough that wrongdoers be justly punished’ he insisted. ‘They must if possible judge and condemn themselves.’ And although he elsewhere warned that confessions could be false, he now put that credo into practice.
Ayrault began by asking Roulet to tell him what he had been accused of – a traditional if sneaky opening gambit among inquisitors – and Roulet replied that people thought him to be a villain. Ayrault specified that he wanted to know what he had been accused of at the time of his arrest, whereupon the beggar told him that he had committed an offence against God and that his parents had given him an ointment. When Ayrault hopefully asked if the potion turned him into a wolf Roulet denied it, but further prodding inspired him to admit that he had killed and eaten a child. He then confessed that he had, after all, been a wolf. Questioned in detail about his appearance at the time, he stated that his face and hands had been bloody, that he had had a wolf’s paws but a human head, and that he had attacked the boy with his teeth. Ayrault had heard enough. Whatever his attitude towards lycanthropy might have been, he certainly believed in murder. And having heard Roulet’s admissions, he now condemned him to death.
Records of the case give no indication why the sentence was not immediately carried out, but they show that the Paris court of appeal quashed the sentence of death three months later. Roulet was more foolish than evil, declared the parlement, and the best way to deal with him was to give him compulsory religious instruction in an asylum for two years. The basis for its decision is not set down, but any sixteenth-century court would have been even less likely than its modern counterpart to reprieve a self-confessed murderous cannibal unless absolutely sure of his innocence. Whether the beggar had been framed or simply fell victim to superstition, Ayrault had evidently got it wrong. He saw the risks of secrecy and untested evidence more clearly than anyone else in early modern France, but alone in his court, away from public scrutiny, his belief that prisoners should ‘judge and condemn themselves’ had led him to encourage a man’s delusions – and then to conclude that they were true.
The progress of inquisitorial procedures through German-speaking central Europe was more uneven than in France, but they would become just as dominant. The execution of the heir to the Hohenstaufen dynasty in 1268
(#litres_trial_promo) saw the region dissolve into a collection of several hundred more or less independent towns and principalities however, and older rituals lingered in many areas long after they had disappeared in others. Some jurisdictions required, for example, that a murder victim’s corpse be borne into court by chanting relatives and assume formal responsibility for prosecuting its killers. A variation on the same theme saw the deceased’s hand severed and given to the defendant who, clad in a loincloth, would have to hold it and assert innocence three times. If the judge detected sufficient signs of discomfort, in either the defendant or the hand, guilt would be established.
Judgment in Germany also retained some notably eccentric features. Judges took their seats clutching unsheathed swords and, after proceedings had been called to order three times by a bailiff, the defendant would recite a confession or request an acquittal. It made no difference which. The judges were formally required to have already decided their verdict, and they would follow up the plea by unfurling and reciting a previously prepared decision. If they had elected to convict, the senior of them would snap his wand of office, toss it to his feet, and pronounce the condemned person’s doom. ‘Your life is over,’ he would roar, as a muffled church-bell tolled. ‘There is no place on this earth for you any more, and in breaking this wand I also break the tie between you and the human race. Only with God may you still find mercy. Woe upon you here! Woe! Woe!’ The clerk would add three more woes. So too would the bailiff. And when the woeing was over, the prisoner’s theoretical expulsion was made practical, as he or she was staked through the heart, burned on a stake, pulped with the rim of a large cartwheel, or strangled from a gallows.
The decentralization meant that German courts would be typified by a relatively freewheeling attitude towards legal technicalities. Far from mitigating the harshness of inquisitorial procedure, however, the flexibility generally made it even more deadly. German judges often enjoyed a particularly broad discretion to pursue obsessions, whether their own or those of their political masters, and all manner of blameless defendants would feel their wrath over the years. Some of the worst injustices came from one particularly dark corner of German jurisprudence: the Jewish ritual murder trial.
The myth that Jews were in the habit of slaughtering young Christians was not born in Germany. The allegation was first recorded in Norwich in 1144, and similar accusations sparked off bloody pogroms in England and France throughout the 1200s. It was only the wholesale expulsion of Jews from both countries (in 1290 and 1306 respectively) that pushed the epicentres of hatred towards Spain and central Europe. But fear and resentment spiralled as the refugees moved and, at a time when the courtroom was becoming the sharp end of political power, Germany’s inquisitors were soon ensuring that both lodged deep within the German body politic.
Their modus operandi is exemplified by a 1476 case that arose out of the Bishop of Regensburg’s discovery that a tortured Jew in Trent had confessed to murdering a Christian child in his diocese. He turned immediately to the local magistrates and in cahoots with the region’s duke, they swiftly itemized the property of the city’s richest Jews. Seventeen were arrested. Although the supposed victim was identified in only the vaguest terms, the judges then drew up a list of twenty-five questions that included the following:
Which Jews brought and purchased the child? Who tortured him? How much money did each Jew give to participate? What was the blood used for? How were the needles used? How were the pincers used? Why was a handkerchief tied around the child’s throat? How was the foreskin on the penis cut off and which Jews cut off the penis and what was done with it? Which Jewesses knew about this and what had they said?
The men, weighed down with stones, were raised and dropped by the rope of a strappado as each question was asked. Within two weeks, six had confessed to the imaginary murder.
The inquisitorial system could also create not just crimes, but entire superstitions. One of the most chilling cases of all, which is also the earliest to be fully recorded, illustrates the process with graphic clarity. In March 1470, workers restoring the charnel house of the small Black Forest town of Endingen reported the discovery of four skeletons, two of which were missing their skulls. It was just a month before Easter, never a high point for Judaeo–Christian harmony in the Middle Ages, and the presence of stray bones in the ossuary sparked panic. Someone recalled that, eight years before, Elias the Jew had sheltered a destitute family, and he and his two brothers were swiftly arrested and subjected to repeated sessions on the strappado. Within days, all had accepted not only that they had murdered the beggars, but also that they had beheaded two children and bathed in their blood.
The interrogations were recorded as they took place, and it is that of Mercklin, questioned after both his brothers had given in, which is the most haunting. He began defiantly, asking why he had to say anything at all if his interrogators already knew him to be guilty. They explained that they wanted to hear the truth from his mouth. Torture soon broke him, but after he confessed he was asked why he and his brothers had drained their victims’ blood. It was a question too far. He had no idea what his tormentors wanted him to say, and the desperation in his voice, as he trawled through their prejudices while the strappado was hoisted and released, echoes down the centuries.
To that he answered in many words, saying at first that Jews need Christian blood because it has great healing power. We would not be satisfied with this answer and told him that he was lying, that we knew why they need it because his brother Eberlin had told us already. To this Mercklin said that Jews need Christian blood for curing epilepsy. But we…would not be satisfied with the answer. Mercklin then said further that Jews need Christian blood for its taste because they themselves stink. But we would not be satisfied with the answer and told him that he was lying, and must tell us the truth, because his brother Eberlin told us a different story; now he must also tell us the truth. To this he answered badly that he wanted to tell us the truth, that he saw it cannot be otherwise…but that Jews need Christian blood [as a holy oil] for circumcision.
It was, at last, the answer that the magistrates wanted and, as was routine for capital offenders in early modern Germany, the brothers were stripped, wrapped in cowhides, dragged to the stake by their ankles, and burned alive.
The punishment was – in extremely relative terms – a mild one. A magistrate elsewhere in Germany might have compounded the humiliation by binding them in pigskin. If they had been thieves, they might have been made to wear hats filled with hot pitch before being hanged. One of the most unpleasant penalties was the one recorded in the adjoining woodcut – involving suspension by the heels between two hungry dogs. But even if the inquisitors of Endingen were not quite as brutal as they might have been, the process that had preceded the penalty was certainly inventive. For it did not so much reaffirm an existing superstition as conjure one into existence. Mercklin’s first answers had regurgitated myths that were common by the 1470s. The notion that human blood could cure epilepsy was so widely held that Germans, regardless of religious belief, would line up to drink thimblefuls of it at public beheadings – until well into the 1800s. The foetor judaicus had been troubling Christian nostrils for centuries, and Freiburg’s councillors had cited Jews’ murderous personal hygiene problems as a reason to expel them as far back as 1401. Mercklin’s final explanation seems, however, to have appeared in writing for the very first time at Endingen.
Quite where it came from is unknown. The focus on foreskins might conceivably have been inspired by Catherine of Siena, recently canonized on the strength of a dream that Christ had given her one, by way of a ring of flesh to wear on her finger.
(#litres_trial_promo) Psychohistorians have, as might be imagined, come up with considerably more involved theories. But whatever the myth’s source, it would endure. The brothers’ confessions were quickly transmitted to other towns along the Rhine, and a link between circumcision and bloodlust very soon became part of the canon of German Judaeophobia. Within a month, four Jewish men in nearby Pforzheim were executed after confessing that they too had killed for the sake of their penises, and similar admissions were obtained six years later by inquisitors in Baden. An unknown writer then re-scripted the narratives into the Endinger Judenspiel, arguably the first trial dramatization of modern European history, which became wildly popular during the seventeenth century and would pack German auditoriums well into the nineteenth. Endingen, meanwhile, celebrated its victory over the eternal Jew by encasing the headless children in a glass cabinet in the town church, until one of its priests decided that their display was a source of shame rather than pride. He reached his conclusion in 1967.
The confidence in rationality that had swept across Europe during the eleventh and twelfth centuries had taken continental jurisprudence a long way. Reason had proved capable of bolstering the most visceral fears and building the most bloodthirsty conclusions. Inspired by a belief that justice was a matter of extracting answers to the right questions, lawyers had developed rules capable of condemning beggars as werewolves. In order to protect Christian children, Jewish prisoners had been identified as vampires. The law’s sturdiest logic could produce the purest fantasy – as was never more apparent than in the context of inquisitorial rules of proof.
The first systematic works on the question of evidence, written by lawyers from northern Italy during the fifteenth and sixteenth centuries, had warned judges that torture was permissible only if circumstantial evidence reached a certain threshold, characterized as a ‘half-proof’ or a ‘proximate indication’. The safeguard, always optimistic, very soon became illusory – because judges, rather than dispense with torture, simply expanded the range of half-proofs. By the 1590s, for example, a suspected thief could be tortured in most parts of Europe if he or she had been spending more than usual. Suspected witches could be tortured in early-seventeenth-century France if they avoided the gaze of their judge. And the rules about half-proofs were complemented by the notion of the ‘perfect proof’, whereby circumstantial evidence, when topped up by a confession, positively required a judge to convict. The logic was elaborate, but the effect was simple: arrest virtually guaranteed torture, which virtually guaranteed conviction.
The diversity of German law meant that its procedures became particularly convoluted. The region’s princes notionally owed loyalty to a ruler whom they elected, and during the sixteenth century a law was enacted by Emperor Charles V that sought to minimize arbitrariness by establishing ground rules that would apply in every German state. The 1532 code, known as the Carolina, permitted each one to maintain its customary laws however, and it aimed only at ensuring that there were ‘legally sufficient’ grounds for torture – with the consequence that it spread inquisitorial lunacies as much as it suppressed them. It advised judges, for example, that torture was permissible if a suspect was ‘insolent and wanton’, or in possession of an item similar to something found at the crime scene. Inquisitors soon got the point, and began developing rules of their own. By the seventeenth century, an unnatural pallor was sufficient to justify torture for several crimes in Frankfurt-am-Main. Suspected adulterers were imperilled simply by being found in an attractive woman’s house – unless the culprit was a cleric, in which case he could be caught in a clinch and the court would presume that he had been ministering to her spiritual needs.
The code also advised inquisitors to seek confessions even where eyewitness testimony and circumstantial evidence were already overwhelming. Prisoners who withdrew admissions on the scaffold might therefore be rushed back to the rack, on the theory that a miscarriage of justice would otherwise ensue. And although the Carolina had been based on a Bamberg statute that pronounced it ‘better to acquit a guilty person than to condemn an innocent one to death’, at least some lawyers took a very different view. Fynes Moryson, an Englishman touring Europe in the late sixteenth century, reported that he had met several who justified deaths through torture with ‘a strange, yet good, saying…namely that it is better one innocent man should dye by triall, then many [guilty] persons should escape for want of [it]’.
It was in eighteenth-century France – a society in which many began to believe that human wisdom was not just improvable but perfectible – that the faith in reason reached its apogee. The spirit of the age was well expressed by the work of an influential jurist called Pierre François Muyart de Vouglans, whose textbooks portrayed French criminal procedure as an almost mathematically precise tool for the discovery of truth. Since crimes were effectively puzzles waiting to be solved, it was positively unjust to hold back when detaining a suspect. ‘The welfare of humanity demands that crime should not remain unpunished,’ he explained. ‘It is for that reason that, in the absence of other means of arriving at [a] complete proof, we are obliged to torture the body of the accused.’ That said, the absence of such proof was no bar to punishment. It had been established in 1670 that anyone who refused to confess was liable to any penalty short of death, and Muyart de Vouglans now explained why: anyone liable for torture was already more than ‘half-convicted’ and deserved a suitably proportioned punishment. If someone’s refusal to confess made a death sentence inappropriate, a judge might, for example, send him to the galleys for life instead. The flexibility of such a system, adjusting the penalty to fit the amount of evidence, represented for Muyart de Vouglans the acme of judicial sophistication. ‘By means of these augmentations and moderations of Penalties,’ he declared, ‘our Jurisprudence has reached a degree of perfection which distinguishes it among civilized Nations.’
Enlightenment rationalism did, however, have a more benign aspect. Previous assumptions about punishment and crime were called into question, and in an age when political philosophers were arguing for the first time that the exercise of power demanded public scrutiny, systematic criticism of the inquisitorial system also began to be heard. The greatest single impetus came in 1764, when an Italian called Cesare Beccaria published a powerful attack on the cruel, arbitrary, and brutal nature of European criminal justice – including a damning critique of the continental reliance on torture – that would define the terms of debate in Europe and America for decades.
Muyart de Vouglans was moved to publish a refutation, but many others were persuaded by Beccaria’s argument – among them, a judge called François Serpillon whose own textbook, published at Lyons three years later, contained another condemnation of torture – all the more persuasive because Serpillon had inflicted it. He reported that the custom in his hometown of Autun was to strip suspects, bind them to a table, and then question them for two hours while their legs were crushed between boards and slowly scalded with twelve pints of boiling oil. He had been present at interrogations twice – once only as a witness, but once (‘compelled’ by the evidence) as the torturer – and neither occasion had ended happily. The good news for the men being questioned was that both had been released following their refusals to confess. The bad news was that the legs of the first suspect had caught fire, necessitating amputation, while the second defendant had been so badly burned that the bones of his toes had had to be removed with pincers.
Another critic of the inquisitorial system, equally vociferous but considerably less compromised by its operation than Serpillon, was Voltaire, who campaigned against its inhumanity for a lifetime, but eloquently damned it with just a few lines in a 1766 commentary on Beccaria’s work. He reported that the inquisitors of Toulouse used not only half-proofs but also quarters and eighths, and came to their decisions by adding them up. A piece of hearsay amounted to a quarter-proof, while an even vaguer rumour might count for an eighth. The result was that eight doubts could constitute a perfect proof and send a man to his death.
Notwithstanding the pride of lawyers like Muyart de Vouglans, the entire edifice of inquisitorial procedure was already tottering by the time that Voltaire wrote his critique. Several European governments abolished torture during the late eighteenth century, and after 1780 even French courts permitted its use only to identify accomplices after conviction. The revolution that began at the Paris Bastille nine years later then saw the system collapse. Within two years, France’s trials had become public and adversarial, defendants had won guarantees against not just torture but oaths, and the power to investigate crimes was at last detached from the duty to judge them.
Enduring reform then came under Napoleon, who enacted a law code in 1808 that would be adopted across Europe and continues to underpin criminal justice systems on the continent today. Although judges can still conduct pre-trial investigations in secret, and dominate courts to an extent that echoes their former role, the malignity of the inquisition is now very much a thing of the past. Later chapters will show that the dangers of unaccountability and torture live on, but those risks are not the relics of any particular legal culture. Abolition of the inquisitorial system did, however, owe much to a very specific rival tradition. For the progressives who campaigned to bring it down modelled their proposals for reform on a criminal process that actually existed on the other side of the English Channel – the jury trial.
3 The Jury Trial (1) (#ulink_bfd3bba7-2375-5a74-b8f0-ce7f2d64fb6b)
He considered what he should say to win over the whole audience once and for all, or if that were not possible, at least to win over most of them for the time being.
FRANZ KAFKA, The Trial
Innocent III’s decision in 1215 to abandon ordeals threw England as much into the lurch as it did the rest of Christendom. For time out of mind, the country’s kings had been subcontracting criminal justice to the clergy, who had been happy to to scald and drown suspected sinners for a small fee. Many ordinary folk had even come to trust trials by fire and water, if only because the primary alternative, trial by combat, seemed suspiciously favourable to whichever litigant was able to afford the better weapons and champion. The country’s response to the abolition of ordeals would, however, be very different from that adopted on the continent.
Whereas continental rulers would turn to the techniques of the papal Inquisition and the rules of canonical law to fill the legal vacuum, the Church would never gain an equivalent degree of influence over royal justice in England. Its legal pretensions had already taken a heavy blow when knights loyal to Henry II had rid their king of turbulent Thomas Becket by braining him in Canterbury Cathedral in 1170. The assassination was followed by important concessions to clerical independence from a penitent Henry, and the English Church of the early thirteenth century was in no mood to rock the boat. While Catholicism’s legal traditions spawned across Europe, nurtured by the demands of its war on heresy, representatives of the English Church positively avoided their country’s royal courts. Clerics would long retain peculiar privileges: they were, for example, granted an automatic immunity from punishment if they read Psalm 51 of the Bible aloud from the dock, a provision that would mutate into ridiculousness over the years as convicts memorized the ‘neck verse’ and merciful judges treated them as monks. Bishops would, for another five centuries, retain the right to try religious crimes such as heresy and moral misdemeanours such as adultery. Canonical law would never get to supersede custom and statute, however. The irrationalities of England’s royal courts would come from sources other than the Good Book.
The authorities initially had little idea what should replace trial by ordeal. Royal judges customarily took the king’s justice to jails around the realm every few years, and their coaches had already left London for the provinces in late 1218, when a rather perplexed note from the guardians of 11-year-old Henry III caught up with them. Proof by fire and water was no longer an option, it reminded them, and they might want to deal with minor cases by exacting promises of good behaviour. Exile would often be appropriate for those suspected of slightly more serious crimes. But all that the note could tentatively suggest for offences of violence or dishonesty was imprisonment – and in an era when judges toured dungeons to empty them rather than fill them up, the proposal was a stopgap rather than a solution. And yet, the king’s advisors had nothing else to offer. ‘For the present,’ they concluded forlornly, ‘we must rely very much on your discretion to act wisely according to the special circumstances of each case.’
England’s judges would rise to the challenge. Their solution was seen for the first time at a trial in Westminster in 1220, when a self-confessed murderer called Alice snitched on five other accused men in the hope of saving her own skin. The charges could not be resolved by battle, because she was a woman, but those she named then agreed to submit ‘for good or ill’ to the judgment of twelve of their property-owning neighbours. Said neighbours promptly swore that one was a law-abiding man but that four were thieves, whereupon the unlucky quartet was hanged. By the following summer, when seven of the king’s judges set out on another circuit of England’s prisons, they had begun to use the new system regularly. Trial by twelve good men and true had been born.
The jury trial would generate countless myths over the following centuries, and those claiming to describe its origins have been among the most tenacious. Athens, Rome, and the Magna Carta – an abortive truce signed in 1215 between King John and rebellious barons – have all, in their time, been credited with inventing the institution. In fact, it owed nothing to any of them. Athenians had judged in groups of several hundred at a time, the mythological Oresteia notwithstanding, and their civilization was one of which few people in thirteenth-century England would even have heard. The Roman Republic had seen the establishment of courts known as the iudicia publica, at which wealthy officers and senators had judged certain offences, but the precedent had no impact at all on English law. The Magna Carta, for its part, asserted that monarchs had to obey their own laws, and used language that would later support arguments for speedy and fair trials, but although it acknowledged pre-existing methods of trial, it did not prescribe any new ones.
No innovation built on tradition has a single source, but some of the rituals from which Westminster’s judges were drawing in 1220 can be identified. England’s rulers had been assembling groups of sworn men to furnish them with information for several centuries, and a link between twelve men on oath and criminal justice had been seen as far back as AD 879, when King Alfred the Great signed a peace treaty with King Guthrum of Denmark. Their agreement, which partitioned England as the price for ending decades of Viking raids, established that a killer in either ruler’s realm could cleanse himself of blood-guilt by producing twelve sworn men (‘if he dares’). Quite where the idea of a dozen judges came from would always excite speculation, with later jurists crediting the Apostles, the tribes of Israel, and so on; but although that mystery remains obscure, it is very clear that in 1220 the number had become conventional. And only a short imaginative step would have been required to transform such compurgation rituals into the jury trial. Even in the early eleventh century, defendants in some cases had been required to choose co-swearers from an independent panel of locals rather than their friends, and the only change required was to turn that exception into the norm. Instead of being allowed to produce their own jurors, defendants would challenge those of their neighbours whom they did not trust to judge them fairly.
Just as there was institutional continuity, the extension of the jury’s role into the field of criminal justice was not a sudden leap from ritual to reason. A society that in 1215 had been committed to the belief that God healed blisters and zapped perjurers for love of justice did not in the space of five years decide that He had lost interest. The new system still relied squarely on the oath, and witnesses played no more than an occasional role in trials until well into the fifteenth century. The earliest jurors were the witnesses and their veredictum – or ‘spoken truth’ – was the only testimony required. God remained the guarantor of justice, and His wisdom was discovered by rituals that treated jurors as ciphers to be cracked rather than as agents of rational inquiry. They were deprived of food, drink, and fire while they deliberated, individually imprisoned if they held out against the majority for longer than a day and a night, and collectively carted from court to court if they swore a verdict that the judge considered perjurious. The crowning absurdity was that, at the same time that jurors were effectively robbed of a right to silence, defendants were formally prohibited from swearing to their innocence – for fear that the guilty among them would otherwise lose their souls.
No thirteenth-century thinker could have been entirely sure that fallible human beings were even capable of stepping into God’s shoes. The risk that a juror might break his oath would have been as keenly perceived as the hope that he would abide by it, while the few people who pondered such matters would have had little confidence in the ability of jurors to assess evidence. As elsewhere in Europe, the unseen deed, like the hidden motive, was widely perceived as a phenomenon beyond mortal ken, unknowable to all but God. England’s first legal writer, Henry Bracton, thus explained in the 1220s or 1230s that it made no sense for jurors to judge a poisoning – the quintessentially secret crime, always associated with sorcery in the pre-modern world – because ‘[they] can know nothing of the deed’. And whereas continental inquisitors would overcome such riddles by subjecting defendants to the rack and strappado, English law would require anyone suspected of particularly mysterious crimes to undergo trial by combat for at least another century.
To the limited extent that the new system did represent a move away from earlier superstitions, it seems to have inspired feelings ranging from trepidation to terror. At one of the first sets of trials, held in Gloucester in June 1221, almost half of the twenty-seven indicted defendants refused to enter a plea. Matilda, accused of murder, declined because she felt that too many people hated her. John explained that he had done far too much evil to want to put his fate in his neighbours’ hands. William, suspected of sheep stealing, backed out after seeing a jury send the defendants immediately ahead of him to the gallows. All the concerns sound eminently sensible, but rationality was certainly not the only force at work. For the judges were almost as unsure about their innovation as the defendants. They did not insist that anyone submit to it, and Matilda, John, and William – along with all the other holdouts – escaped execution. Two of the trio were immediately released.
The judges would soon overcome their compunctions, and by the time they reached Warwick, three months after the Gloucester debacle, they were putting their collective foot down. A murderer and a thief who refused to plead to a jury were unceremoniously hanged, and judges were soon requiring that defendants state – on their knees with right hand raised – that they consented to jury trial ‘for good or ill’. If they refused to do so they would be spread-eagled under stones or lead and given only bread and water until they submitted or died. The suspicions attaching to the novel system were nevertheless such that resistance was widespread for decades, and sporadic for far longer. As late as the mid eighteenth century there would be people who would refuse trial by jury, and England’s authorities retained the right to extract pleas using thumbscrews and millstones until 1772.
Not much is known about the trials that ensued over the next two centuries, but they were certainly very different from their modern counterparts. Although the law’s concern for the fate of defendants’ souls meant that an accused was denied the opportunity to give sworn testimony, few asserted a right to silence – for in the absence of any right to a lawyer, suspects who knew what was good for them argued for their lives. Their opponent was the accuser: prosecuting lawyers appeared only in major cases before the seventeenth century, and independent testimony was all but unheard of until the early 1500s. An English lawyer writing in the 1470s, Sir John Fortescue, found the very notion of witnesses downright sinister. In a lengthy explanation of how English trials were the best in the world, he explained that continental inquisitors not only used unpleasantly belly-bursting, tendon-snapping techniques of torture, but brought people to court to say what they knew. They could, he pointed out, be bribed to say anything. Far more sensible, he argued, to have a system under which no one was liable to conviction except on the sworn evidence of twelve unbiased men.
A gulf had begun to yawn between Europe’s two systems; and notwithstanding Fortescue’s pride, there is little doubt that the courts of the continent had the stronger credentials. Structured around Roman law and inspired by the belief that justice was a matter of clever men applying their minds to a case, they had both tradition and reason on their side. Those of England, on the other hand, rested on a hotchpotch of superstition. Reliance on the ability of unlettered jurors to administer justice was, quite literally, a relic of barbarism.
And yet, for all its irrationality, England was already producing a method of trial considerably more benign. The notion that some matters were simply unknowable was helping to restrain the temptation to torture: against the bloody record of continental Europe, kings and royal officials would issue no more than eighty-one torture warrants over the entire course of England’s history. English judges were also in a better position – at least potentially – to appreciate human frailty. Denied the right to seek the truth through force and required to sit alongside ordinary jurors, they could say, as Chief Justice Brian did in the late 1400s, that, ‘The thought of man shall not be tried, for the devil himself knoweth not the thought of man.’ And whereas continental justice was becoming a secret process, controlled by adepts who kept a lid on its mysteries until the moment of judgment, English trials were already virtually defined by their openness. The need to assemble jurors made it impossible to exclude the public, and although sheriffs and jailers would extort admission fees until the 1700s, large crowds invariably entered in their wake.
The characteristics of English courtrooms were, like all customs, as accidental as they were determined. They would, however, collectively define a notion of justice that would be of lasting significance – in England first, and then far beyond. And the most important accident of all was publicity, which would now turn the trial from an oath-taking ritual into a dynamic contest of fundamental political and social significance.
The background to the transformation was the crisis that tore England apart in the aftermath of Henry VIII’s break from the Roman Church in the 1530s. Henry, anxious to secure spiritual approval for sexual relations with Anne Boleyn, spent the late 1520s unsuccessfully lobbying the pope for a divorce, eventually growing so irritable that in 1534 he established his own national Church. It was enough, very temporarily, to resolve his marital difficulties, but it also marked the beginning of a very troubled era in English history. Over the next decade, Henry beheaded and divorced his way through another three marriages, decimating English Catholicism in the process. As traditional bonds of religious and national fidelity snapped, his government sidelined regular legal procedures in favour of the rudiments of a police state. Tribunals such as the Privy Council and Star Chamber assumed the power to punish without trial, and the torture chamber of the Tower of London was replenished and used to a greater extent than ever before. Henry simultaneously redefined treason to force his subjects to recognize his new authority or make their opposition apparent. The crime had never been the most tightly defined of offences – capable of penalizing acts ranging from fornication with the royal consort to forgery of a sixpence – but remaining outside its parameters now became an almost acrobatic act. The laws that attempted to keep up with Henry’s marital shenanigans are a case in point. The 1534 Act of Succession suddenly rendered it treacherous to deny the legitimacy of Elizabeth, his daughter by Anne Boleyn, or to assert that of his firstborn Mary. Two years later, another statute granted free pardon to anyone who had asserted the whoredom of Anne or the bastardy of her child. In 1543, with Henry planning an invasion of France, fears of familial oblivion generated a final burst of paternal pride, and he pronounced that anyone who refused to confirm the birthright of either daughter would be hanged, drawn, and quartered.
The oscillations only intensified after Henry’s death in 1547. Edward VI had barely hit puberty when he himself died, aged 15, in 1553, and Mary Tudor then threw the ship of state into reverse by restoring English Catholicism and burning some three hundred Protestants to prove it. Her half-sister, Elizabeth, gave the wheel another turn in 1558. Although conciliatory by temperament, she restored Protestantism as the national religion and soon found herself caught between a regrouping papacy, ambitious monarchs in Spain and France, and a realm on the verge of civil war. In pursuit of peace she flirted politically and socially with almost every eligible Catholic on the continent, but her legitimacy, in every sense, depended on the men of Rome – and they were not to be charmed. Pius V excommunicated her in 1570. Ten years later, Gregory XIII’s Secretary of State let it be known that an assassin could expect not just forgiveness from God, but positive gratitude.
In reaction to the papal fatwas, Elizabeth’s government mounted an increasingly ferocious assault on the Catholic enemy within. The authoritarian machinery that had taken shape under her father swung into action against religious insurgents real and imagined, while an equally threatening surge of ordinary crime inspired the construction in 1571 of a triple-beamed gallows that would soon become a byword for legal cruelty in England – Tyburn. By the 1590s a visiting Duke of Wirtemberg was able to count more than thirty grinning heads as he strolled across the towers and twenty arches of old London Bridge. Punishments did not just increase in number. Since the reign of Henry VIII, their variety had also been propagating,
(#litres_trial_promo) and they now flowered into a pattern of dizzying complexity. Minor criminals might be dunked or made to wear a placard carrying the name of their crime. Felons often had the initials of their offence inscribed in their flesh, while those who devalued the royal coin were made to pay with the loss of their ears and nostrils. The symbolic amputation once imposed on libellous printers by Mary Tudor was also revived – claiming, among its first victims, the appropriately named John Stubbes, who exuberantly raised his hat and yelled ‘God save the Queen’ as a mallet was hammered through his right wrist. One case from 1594 can stand as memorial to all the thousands of other butcheries. It concerned five men convicted of a string of felonies ranging from counterfeiting to blackmail: four were sentenced to ‘stand on the pillory and lose their ears if they have any’ before being branded on the forehead with the letter ‘F’. Elizabeth’s most trusted judge, Lord Burghley, complained that such burns healed too quickly and proposed to ten of his fellow Privy Councillors that the Fs should instead be carved into the convicts’ cheeks and have coloured powder rubbed into them. It seems, thankfully, to have been a proposal too far. According to the lawyer who reported the case, ‘the others made no reply to this’.
The spread of corporal punishment was not unusual. Rulers across Europe were relying on the appearance of power to magnify its reality, and in Elizabeth’s realm – riddled by spies, convulsed by rebellions and consumed by crime – the need to show subjects who was in control was a pressing one. But English criminal justice underwent a second, unique, transformation – for it did not use just human bodies as billboards for government authority. At the very same time that the rulers of France and Germany were ending the last vestiges of courtroom publicity, the English government embarked on a deliberate policy of using not just punishments but trials to show where power lay.
Henry VIII had sown the seeds with condemnations of, for example, Thomas More and Anne Boleyn, but it was during the reign of Elizabeth that the strategy reached fruition. Under the hammerbeam roofs and stone vaults of England’s palaces, traitors stood behind solemn pikemen to hear their crimes described and their protestations of innocence ridiculed by some of the finest advocates of Renaissance England. Vast crowds were permitted to attend, and although witnesses were still forbidden to defendants, they increasingly appeared on behalf of the Crown – often very suddenly. At the trial of the Earl of Essex, for example, the Lord Chief Justice stepped down from the benches to testify at the behest of the Attorney-General while a Privy Councillor emerged at one point from a secret listening post to interrupt and contradict the defendant. And when it was all over, convocations of robed judges invited the jurors to consider the question of innocence or guilt. The verdicts rarely surprised. Records of the proceedings, transcribed by squads of stenographers, were then turned into anti-Catholic propaganda and published in English and Latin for the benefit of audiences domestic and European.
The hearings were rituals of condemnation rather than inquiry, and only a handful of acquittals ever occurred – but the insistence on public articulation meant that even the most careful preparations could suddenly go awry. When William Parry appeared at Westminster Hall in 1585 to answer charges of attempting to assassinate Elizabeth, he wearily entered a guilty plea and declared that, ‘I desire not life, but desire to die’. But the court was packed with Londoners anxious to see Parry get his comeuppance, and instead of moving directly to sentence his judges ordered that his confession be read aloud, ‘that everyone may see that the matter is as bad as the Indictment purporteth’. As Parry heard his words repeated, steel returned to his broken frame. ‘Your Honours know…how my confession was extorted,’ he declared. They fired back that torture had not been used. It had been threatened, he retorted. Charge and counter-charge spiralled, until Parry was denying any intention to kill the queen at all and promising to ‘lay his blood’ amongst the judges if they condemned him to death. The rattled men of the bench, warning him against such ‘dark speeches’, ordered that he be hanged, drawn, and quartered. A process that would have remained behind closed doors on the continent ended with the defendant being pulled down the riverside steps past a hooting mob, demanding ‘in his rage and passion’ that Elizabeth be summonsed ‘to answer for my blood before God’.
No trial better illustrated the unpredictable force of publicity than one that occurred under the reign of Elizabeth’s successor, King James I, in November 1603: the prosecution for treason of Sir Walter Raleigh. Drama was virtually guaranteed from the outset. Until Elizabeth’s death in March 1603, Raleigh had enjoyed a charmed existence. Tall and elegant, he had shimmered like a peacock in a court where looks had mattered. After sponsoring England’s first American colony at Roanoke in 1585, he had introduced Elizabeth’s entourage to the pleasures of tobacco, and done more than any man alive to popularize the potato. Most heroic of all were his exploits against Spain, whose fleet he had taken on in battle three times. As England had flexed its maritime muscles he had trespassed even further into the heart of Spanish darkness, returning from one voyage in 1595 with tales of a land called Guyana where the natives’ heads grew beneath their shoulders and precious metals veined every rock. El Dorado, he had reported, was just a return trip away.
All the derring-do came with an arrogance that lost friends as easily as it won them, however. Even Elizabeth sent Raleigh to the doghouse for several years when he breached palace protocol by impregnating one of her maids of honour, and the fastidious James took against him almost instantly. Though unequivocally Protestant, the king was always more concerned to steady his wobbly throne than to fight the old religion, and was as underwhelmed by Raleigh’s anti-Spanish credentials as he was unimpressed by his fondness for tobacco. Within months of James assuming the throne, the monopolies, patents, and privileges dispensed by Elizabeth were suspended and Raleigh had lost his grace-and-favour mansion. Although inconvenient, it seemed no more than a routine shake-up – until in the summer, one of Raleigh’s closest friends, Lord Henry Cobham, was implicated in a Catholic plot to overthrow the king. No evidence linked Raleigh to the conspiracy, but he too found himself under arrest in mid July on suspicion of treason. The rogue of the old dispensation was about to turn into the whipping boy of the new.
In November 1603, with a plague epidemic claiming two thousand lives a week in London, the entire court decamped to the ancient city of Winchester for the trials. The city traced its history back to Rome and its mythology back to Camelot, but this was the grandest show that it had seen in a long while. Scholars were thrown out of their cathedral lodgings to accommodate the jurists, James set up field headquarters at a nearby mansion, and carriages laden with judges, jurors, lawyers, and defendants were soon streaming through its gates. Raleigh took up residence at the castle dungeon on 15 November, and arrived to the news that several of the Catholics charged with conspiring against James had just been tried, and that all but one had been sentenced to death. Although Raleigh’s own interrogators had never sought to link him to a broader plot, it was not a good sign.
Early in the morning of 17 November Raleigh was escorted by pikewielding guards down to the Bishop’s Palace, and led into its sepulchral courtroom. His plummeting fortunes had been entertaining the country for months, and popular interest in his anticipated destruction was immense. On the five-day journey from London, his carriage had been received with abuse, rocks and showers of clay pipes throughout (inspiring Raleigh laconically to observe that ‘dogs do always bark at those they know not’), and the pillars, bays, and benches were now filled. Aristocrats and commoners sat cheek to cheek, exhaling large clouds of tobacco smoke if other trials of the time are a guide, as they waited for the show to begin. Almost all would have been hoping to see the final act of an epic life.
All seemed set fair to sink Raleigh. A phalanx of eleven royal commissioners, all of whom had helped investigate the plot against James, sat at the front of the court, four wearing the scarlet robes and black cornercaps of high judicial office. Local legend tells that the king himself was concealed in a cubbyhole, his ear to a listening hole, and although unlikely (because James had specifically sent reporters to court) it would not have been out of character; he secretly eavesdropped at many other major trials that occured during his reign. And at the prosecution benches, flanked by his fellow lawyers, was the most feared advocate of the day: Attorney-General Sir Edward Coke.
The lawyer, in his early fifties like Raleigh, was in many ways the mirror image of his adversary. Equally imposing physically and no less confident personally, he epitomized just as Raleigh did a social type that was emerging for the first time in England: the self-made man. Each was born into a comfortable but non-aristocratic family; and although they had frequented different types of court, both had clambered up the hierarchy with a judicious combination of back-stabbing, fawning, and charm. Like many Elizabethans on the make, both were also masterful rhetoricians. In a fluid society where a commoner could no longer become a monk but could be appointed Attorney-General or mount a search for El Dorado if he sounded convincing enough, the ability to persuade was becoming an essential skill. Raleigh was a talented poet and writer while Coke, though always more likely to censor England’s theatres than to attend them, had an eloquence renowned even among contemporaries who were rarely tongue-tied. Elizabethan schoolboys were taught adoxography, the art of eruditely praising worthless things.
(#litres_trial_promo) Coke mastered a converse skill – and with his words, he sent scores of men careening to their deaths.
The power was one that he exercised with pleasure. When the Earl of Essex told his treason jury in 1600 that Coke was ‘play[ing] the orator’ and displaying ‘the trade and talent of those who value themselves upon their skill in pleading innocent men out of their lives’, the remarks contained the soupçon of an aristocratic sneer. But the trade and talent of the commoner from Norwich Grammar School was enough to persuade twelve peers to despatch Essex to the chopping block, and Coke would only have taken the complaint as a compliment. For he prosecuted with a passion that went beyond the call of professional duty. It was a quality exemplified in his verbal duel with Raleigh, which has good claim to be the most abusive courtroom battle in England’s history.
As was usual, Raleigh had not seen the indictment before coming into court, and he now heard for the first time that he had supposedly agreed with Cobham to raise rebellion on behalf of Spain’s king and hand James’s crown to a Catholic pretender. That came as little surprise, but Coke then continued, apropos of nothing very much, with lurid accounts of the conspiracies of which the other plotters had been convicted two days before. Raleigh listened in silence for several minutes, before pointing out that their crimes had nothing to do with him. Coke did not deign to reply directly. ‘Like Sampson’s foxes, [the treasons] were joined in the tails though their heads were severed,’ he pronounced, before stitching together several non sequiturs of his own. Treason, he explained to the jury, had its root, bud, blossom, and fruit, and this was treachery so radical that it had not even been put into effect. The others had already been convicted of plotting against ‘the [king] and his cubs’, he pointed out, before swivelling towards Raleigh. ‘But to whom, Sir Walter, did you bear malice? To the royal children?’ As though accosted by a drunkard with a knife, Raleigh’s reply was nervous courtesy itself. ‘Mr. Attorney, I pray you to whom, or to what end speak you all this?…What is the treason of [the others] to me?’
Oozing a vitriol that still hisses from the page, Coke finally homed in on his quarry. ‘I will then come close to you. I will prove you to be the most notorious traitor that ever came to the bar.’ Raleigh replied that if the lawyer could prove anything at all, he would admit not just that he was a traitor but that he was ‘worthy to be crucified with a thousand torments’. ‘Nay, I will prove all,’ growled Coke. ‘Thou art a monster; thou hast an English face, but a Spanish heart.’ He continued with another sustained attack on various betrayals supposedly committed by Lord Cobham, who was awaiting his own trial in a dungeon below the court. ‘What is that to me?’ Raleigh demanded. ‘If my Lord Cobham be a traitor, what is that to me?’ Coke erupted with anger. ‘All that he did was by thy instigation thou viper, for I thou thee, thou traitor!’ All the thouing, a form of address conventionally used for children, servants, and animals, threatened to turn the exchange into a slanging match, but Raleigh’s retaliation remained restrained. ‘You may call me a traitor at your pleasure, yet it becomes not a man of quality and virtue to do so,’ he replied, ‘but I take comfort in it, it is all that you can do.’ Lord Chief Justice Sir John Popham – a massive presence in a blood-red gown – stepped in to separate the men. ‘Mr. Attorney speaks out of the zeal of his duty for the service of the King; and you for your life,’ he told Raleigh, ‘be patient on both sides.’
Any hope of a clean fight was, however, doomed from the start – for it very soon emerged that the combatants did not even agree on the contest’s rules. In particular, they had diametrically opposed ideas about what constituted evidence. When Coke responded to Raleigh’s challenge by declaring that he would turn to his proofs, he read aloud an unsigned statement in which Lord Cobham was said to have confessed, four months earlier, that Raleigh had incited him to serve Spain. Raleigh, after reminding the jurors that he had done more than most to subvert Spanish interests, asked that Cobham make the claim to his face. Every defendant, he argued, had the right to confront his accuser. The law of England, like the Book of Deuteronomy, guaranteed that no one could be convicted of treason unless publicly charged by at least two witnesses.
The claim caused consternation among the judges; and although one reason was that Raleigh was simply wrong under the law of the time, the discombobulation reflected more than disagreement over the technicalities of treason. It was still just a few decades since witnesses had first begun to appear in trials – and the judges thought it preposterous to propose that criminal allegations required testimony at all. ‘I marvel, Sir Walter, that you, being of such experience and wit, should stand on this point,’ said Justice Warburton, ‘for many horse-stealers should escape if they may not be condemned without witnesses.’ When Raleigh insisted that the whole purpose of a trial was to allow a jury to weigh up the prosecution’s evidence, Lord Popham hoisted his bulky frame back into the fray. He had already told the jury that he could personally vouch for the truth of Cobham’s confession, having taken it himself, and his intervention was as predictable as it was decisive. No, he declared abruptly, trials did not require witnesses. A person could be convicted on the strength of confessions and statements that had been recorded before the hearing. ‘I know not, my Lord, how you conceive the law,’ responded Raleigh, ‘but if you affirm it, it must be a law to all posterity.’ ‘Nay, we do not conceive the law,’ boomed Popham. ‘We know the law.’
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Any doubts that Coke might have had about his case were finally dispelled. He returned to the attack, now reciting from statements made by the men already convicted, in which they repeated rumours, second- and third-hand, about Raleigh’s willingness to betray England. ‘O barbarous!’ exploded Raleigh. ‘Do you bring the words of these hellish spiders against me?…I find not myself touched, scarce named; and the course of proof is strange; if witnesses are to speak by relation to one another, by this means you may have any man’s life in a week; and I may be massacred by mere hearsay.’ He pleaded again for Cobham to be produced in court but Popham held firm, pointing out – plausibly, if unhelpfully – that he might recant and confuse the jury.
As if to taunt Raleigh, Coke then produced a second statement from Cobham in which he apparently claimed that Raleigh had written to tell him that traitors were immune from punishment in the absence of two accusers. When Raleigh vehemently denied writing such a letter, the prosecutor announced that he would, after all, call a live witness. All heads turned – to see an unknown character step forward. The man identified himself as a sailor called Dyer, and told the jurors that someone in Lisbon had once told him that James would never be crowned king of England because Don Raleigh and Don Cobham would slit his throat first. He then drifted away as mysteriously as he had arrived. A flabbergasted Raleigh inquired how the supposed ramblings of an unknown person in Portugal could possibly implicate him. ‘Your treason’, snarled Coke, ‘had wings.’
As the hearing neared its conclusion and Raleigh pleaded with the jury to judge him as they would want to be judged, Coke demanded ‘the last word for the King’. ‘Nay, I will have the last word for my life,’ replied Raleigh. ‘Go to,’ exploded the Attorney-General.’ I will lay thee upon thy back for the confidentest traitor that ever came to the bar!’ Even the judges now sided with Raleigh until Coke sat down and petulantly accused them of encouraging treachery. They relented, like bad parents with a worse child, and begged him to carry on – which he did, at length. His summary of all the statements that everyone had already heard elicited yet another protest, and Coke let loose with one final spray of abuse. Addressing Raleigh to his face, he condemned him as ‘the most vile and execrable traitor that ever lived’, ‘an odious fellow’ whose ‘name is hateful to all the realm of England for thy pride’. As cool as his opponent was incontinent, Raleigh wondered which of them deserved the superlatives. ‘It will go near to prove a measuring cast between you and me, Mr. Attorney.’
The sympathies of the spectators had indeed shifted. One of James’s courtiers later told the king that ‘he would have gone a thousand miles to have seen [Raleigh] hanged’ at the beginning of the trial, but ‘would…have gone a thousand to save his life’ by its end. ‘In half a day’, another observer reported, ‘the mind of all the company was changed from the extremest hate to the greatest pity.’ Coke’s attacks inspired such hostility among bystanders, wrote someone else, that ‘calling hym base trash [they] begann to hyss’ while Coke himself looked ‘to be something daunted’. But the lawyer also had the thick skin of a seasoned showman – and the nous to save the best till last. Like a knife thrower with one final trick, Coke now pulled a scroll from his pocket, and the crowd hushed.
He had in his hand, he announced, a signed letter that Cobham had written just the day before. The prisoner had been so troubled by a guilty conscience that he had been unable to sleep and he had now chosen finally to unburden himself. ‘I have thought it fit’, recited Coke in his powerful voice, ‘to write nothing but what is true; for I am not ignorant of my present condition, and now to dissemble with God is no time.’ Raleigh, the letter continued, had written to him in his jail cell – not just once, but twice – and urged him to withdraw his accusations of treason. But Cobham would not do so. Indeed, ‘craving humble pardon’ for his ‘double dealing’, he now claimed that Raleigh had solicited an annual payment of £1500 from the Spanish government in exchange for his services as a spy.
Raleigh was visibly shaken. He eventually handed up a letter, smuggled out of Cobham’s cell, in which the prisoner said precisely the opposite, protesting Raleigh’s innocence, but it came as a damp squib after Coke’s pyrotechnics. Raleigh admitted also that he had indeed written twice to his old friend, that he had been offered £1500 to be a spy and that he had been wrong to conceal that fact from the court. ‘But for attempting or conspiring any treason against the King or the State,’ he insisted, ‘I still deny it to the death, and it can never be proved against me.’ It was all too late. Even if Cobham was a double-dealer on his own admission, Raleigh’s own words suddenly sounded like those of a man with secrets to hide.
After the jurors were told by one of Coke’s colleagues that the defendant had to prove his innocence, a common view in the seventeenth century, it took them just fifteen minutes to return a guilty verdict. Lord Popham then delivered the standard sentence for traitors, ordering that Raleigh be dragged to the scaffold and half-hanged, before being made to watch while his intestines and penis were tossed onto a fire. He was then to be decapitated and cut into quarters, each flank to be disposed of at the king’s pleasure.
Such a sight would have made a great many people very happy in 1603, but Raleigh’s life had further to run. He was spared by James and spent more than a decade confined to quarters in the Tower of London, conducting chemistry experiments, writing a history of the world and imagining lands and times far away. Then, in 1616, opportunity knocked. James, ruminating on Raleigh’s claims to have stumbled upon the route to El Dorado, had decided that a little unfathomable wealth would be no bad thing. He could, declared the king, set off to find the fabled city – a fifth of all receipts to go to the Crown. Raleigh, presented with one last glimpse of glory, set sail on 12 June 1617. By the time he returned a year later, the dream had turned to dust. Skirmishes and smallpox had devastated his crew. Among the scores of men that he had left buried on the banks of the Orinoco were his lifelong servant and his eldest son. And instead of cargoes of bounty, he trailed in his wake only furious complaints from Spain’s ambassador that he had attacked one of that country’s colonial outposts.
James, deeply unimpressed with his fifth of nothing, now judged it politic to appease the national enemy. The man who had been condemned for serving Spain was about to pay a heavy price for having offended it, for instead of giving Raleigh another trial the king decided simply to enforce the penalty that he had stayed fifteen years before. Sentence was pronounced at a hearing at which Attorney-General Sir Henry Yelverton delivered a Luciferian epitaph for Raleigh. He had lived ‘as a star at which the world hath gazed’, he told the judges, ‘but stars may fall, nay, they must fall when they trouble the sphere wherein they abide’.
The end came on a chilly morning in late October 1618. The crowd’s sympathies were this time squarely with Raleigh. At a time when Elizabethan England was already receding into mythology, his erstwhile arrogance had come to seem fitting to an age of giants, and the doomed quest for El Dorado had tempered its edge with tragedy. The panache with which he now lost his head would propel him into the pantheon of great dead Englishmen. After a long speech that ended with an invitation to the spectators to join him in prayer, the sexagenarian, etched and grey, thumbed the blade of the axe that would kill him. It was ‘a sharp medicine’, he murmured, ‘but it will cure all diseases’. He knelt at the block and, told that he was facing westwards – away from the traditionally presumed direction of the Last Judgment – declined to switch direction. ‘What matter how the head lie, so [long as] the heart be right?’ he asked. His last words, refusing the headsman’s offer of a blindfold, were suitably swashbuckling: ‘Think you I fear the shadow of the axe, when I fear not the axe itself?’ The show was over – and with a final flourish, Raleigh threw his arms above his shoulders to call down the curtain.
Whether Raleigh was in fact innocent of the treason charges laid against him in 1603 is as questionable today as it was four centuries ago. He certainly had reason to fear that his influence would decline after Elizabeth’s death, and although his score sheet against Spain was impressive, he lived in an age when allegiances were honoured in the breach as much as in the observance. For what it was worth, Cobham reasserted Raleigh’s guilt at his own trial and maintained the accusation ‘upon the hope of his soul’s resurrection’ as he stood upon his scaffold.
Raleigh’s trial was important, however, for reasons that transcended the truth or falsity of the charges. The sight of him struggling for his life against a phantom accuser, damned by documents that were dealt out like a blackjack hand, was so palpably unfair that it almost immediately became a model for how things ought not to be done. Several of the king’s advisers – including Edward Coke – urged James in 1618 to give him a second trial, with witnesses; and although the monarch remained ruthless as ever, reminding them that Raleigh had ‘by his wit…turned the hatred of men into compassion,’ the proceedings would fall ever deeper into disrepute. Raleigh himself claimed at his condemnation that one of the judges had repented of his role at Winchester from his deathbed. By 1656, an anonymous pamphleteer was swearing that Coke had privately expressed shock at the jury’s verdict, while another writer recorded that the jurors had knelt to beg Raleigh’s forgiveness after convicting him. All the stories were as incredible as they sound, but the speed with which they were recounted and believed is a sign of just how emblematic the trial had become. The myths would in time contribute to ideas even more far-reaching: that courts were there to limit state power as much as to express it; that prosecutions could be unfair even if a defendant was guilty; and that justice was done only if seen to be done. And they did so simply because transparency had made the unfairness of the alternative so manifest.
An ironic postscript is that few people did more to promote the vision of liberty that would accompany the sanctification of Raleigh’s trial than Sir Edward Coke himself. In 1606, King James promoted his Attorney-General to Chief Justice of Common Pleas, at which point the erstwhile lapdog clenched his teeth around the hand that had fed him, and bit – hard. For the two decades that remained of his life, he would not let go. At a time of political turmoil, when thinkers across Europe were pondering the ideal relationship between God, monarch, and subject, James had written a treatise arguing that kings were above human laws and followed them voluntarily, if at all. Coke, by way of several court rulings, case reports and a monumental textbook, begged to differ, insisting that rulers obeyed because they had to. To cut a very long story extremely short, his arguments won. The Puritan rebels who chopped off the head of James’s son, Charles I, cited him as their legal authority in 1649. Towards the end of the next century, his work would enjoy an even more lasting impact – inspiring American revolutionaries from John Adams to Thomas Jefferson, when they too concluded that it was time to cut their rulers down to size.
Raleigh’s claim that criminal trials were public arguments over the meaning of testimony would, of course, be vindicated, but a crucial issue remained unresolved. The ancient notion that jurors themselves were somehow witnesses had always made for a certain tension as to their proper role. It was widely agreed that juries decided questions of fact, but those decisions could be regarded as statements so sacrosanct as to be unquestionable. They might alternatively be seen as lies, tantamount to perjury. Which view prevailed depended simply on whether judges would presume to decide that jurors had breached their oaths to God.
The chances that they would do so had built throughout the 1500s, as England’s expanding middle class grew ever more likely to stand up to their social superiors. By the end of the century, it was becoming increasingly common for judges to fine jurors – sometimes for returning a supposedly corrupt verdict, and sometimes simply for breaching the ancient rules requiring that they deliberate without food, drink, and fire. John Mucklow was imprisoned and fined twenty shillings in the mid 1570s after being caught smuggling preserved barberries, sugar candy, and liquorice into the jury room. A decade later, several jurors who were taking too long over their verdicts were searched and again found to be in possession of contraband: two who confessed to eating figs were fined £5 apiece, and three who admitted possession, but not consumption, of apples, had to pay forty shillings. Such disputes turned on fruit, but they reflected an issue that was anything but trifling: the ancient question of who in the community wielded the ultimate power to judge.
The case that brought the conflict to a head – the prosecution of two Quaker activists in 1670 – could hardly have been more perfectly designed to do so. In a country still rolling with the aftershocks of a civil war that had seen a monarch executed, the Church abolished, and each institution revived within a dozen years, deference was in short supply. Nonconformists such as the Puritans had led the revolt against King Charles I, while countless other sects had thrived during the subsequent eclipse of Anglicanism, and few were friendly towards the notion of secular rule. Several had theological objections to tax. Some had a problem with human law in its entirety. All were anathema to the restored forces of royalism.
Almost as soon as it took power, the new government had enacted statutes to reassert the authority of the official Church. The most draconian was the Conventicle Act of 1664, which made it an offence – punishable by death, if repeated – to participate in any act of nonconformist worship involving more than four people. Over the next few years, thousands of prosecutions were launched, and hundreds of dissenters were transported or executed for violating the statute. The Act came up for renewal in 1670, provoking protests across England. One of the demonstrations, staged by Quakers, would give rise to the most significant jury trial in history.
The Quakers were a threatening bunch from the standpoint of the status quo. Founded by a man who claimed a hundred and fifty miracles to his credit and named for their tendency to tremble and yelp while at prayer, adherents rarely met a convention that they did not despise. Some regarded clothes as superfluous and perambulated in the nude. Others went in the opposite direction and kept their hats on in the presence of social superiors – an expression of sartorial independence that sometimes inspired no less distress than the nudity. Several set out to undermine the greatest certainty of all, staging enthusiastic attempts to raise the dead. The eccentricity was accompanied by a dynamism that put them at the front line of resistance during the 1660s, and when word spread in August 1670 that they would be holding a prayer meeting at a hall in London’s Gracechurch Street, the authorities took no chances. Would-be worshippers arrived to find the doors padlocked. Among those worshippers, however, were two men who realized that the closure made a protest easier than ever. Turning to a crowd that was perhaps a hundred times the size permitted by the Conventicle Act, a 25-year-old called William Penn began to speak. Within minutes, he and a 42-year old linen draper by the name of William Mead were under arrest.
Battle was joined two weeks later at the Sessions House of the Old Bailey. The Fire of London had reduced much of the capital to waste four years before and its courthouse had been temporarily relocated into a wooden shack; but the surroundings belied the significance of the moment. The people present, who included five aldermen and a hundred or so spectators, were in for a magnificent show.
Presiding over the court were London’s two most senior judges – its staunchly royalist
(#litres_trial_promo) Lord Mayor, Samuel Starling, and Recorder Thomas Howel – and they were resolved from the outset to make an example of the nonconformist troublemakers. Both defendants were kept waiting in the malodorous holding cell for the sitting’s entire first day, while the court processed assorted ruffians and cutpurses instead, and when it reconvened two days later, the judges were ready with a second surprise. Aware of the Quakers’ touchiness about headgear, Samuel Starling had determined to cite both men for contempt as soon as they entered court – and when an over-eager bailiff accidentally upset his plans, he refused to be denied. ‘Sirrah, who bid you put off their hats?’ he yelled. ‘Put [them] back on again.’ The defendants were duly re-hatted, whereupon Thomas Howel fined them forty marks (a sum that could have paid for another hundred hats) for refusing to take them off again.
The authorities had charged both men with addressing a tumultuous assembly, a violation of common-law custom – doubtless concerned that a charge under the Conventicle Act might turn the trial into a direct assault on the statute. But Penn was not someone who could be so easily wrongfooted. A portrait painted some four years earlier shows an elegant and self-possessed young man, and although a committed religious rebel, he was easily the social and intellectual equal of his judges. The son of an admiralty official acquainted with King Charles II, he had studied at Oxford – before, on his own account, being ‘banisht’ – and the contrariness that then took him into several jails had not stopped him from picking up a legal education at Lincoln’s Inn. And like any eighteenth-century Quaker, he could talk the talk at least as well as he walked the walk. Told the charges against him, he asked that they be put in writing because they were too long to remember and then demanded to know ‘upon what law you ground my indictment’. Thomas Howel replied it was based on ‘the common law’. And where, Penn asked, might that be found? The flustered judge took refuge in Latin, declaring that it was lex non scripta – or unwritten law – and a thing ‘which many have studied thirty or forty years to know’. If it was that hard to understand, countered Penn, it did not sound very common at all.
It was presumably crowd-pleasing stuff, but the trial itself, like most hearings of the period, was a perfunctory affair. Four men trooped through the witness box to state that Mead had been at Gracechurch Street, that Penn had ‘preached’ words that they could not recall, and that there had been several hundred people on the scene. When the defendants tried to address the jurors – contending that they should not be convicted because they had not incited violence, and pleading with them to remember that their verdicts would affect tens of thousands of lives – they were swiftly dragged into the holding cell. As Penn continued his speech from below the court, Howel told the jurors that they had heard evidence proving the indictment and should now return their verdict. There is no doubt what he expected it to be.
But events then took an unexpected turn. The jurors asked for time to consider their decision – a request that was itself becoming unusual by the late seventeenth century – and it was an hour and a half before they returned. Eight were ready to convict, but four of them, led by a wealthy Puritan sugar merchant named Edward Bushel, were not prepared to do so. Starling declared Bushel ‘impudent’, and the jurors were sent away to think again. If the rebuke was supposed to fortify the majority, the judges were in for a shock. By the time the jurors returned, Bushel had been elected their foreman, and he now declared that Penn was ‘guilty of speaking in Grace-Church Street’. Since speech alone had never been a crime under English law, non scripta or otherwise, the finding amounted to a verdict of not guilty. ‘Is that all?’ barked Howel. ‘You had as good say nothing.’ Sent off again, the jurors asked for a pen, ink, and paper and returned with a verdict in writing. Penn was guilty only of speaking, they repeated, and Mead was not guilty, full stop. Howel coldly informed them that they would not be going home until they had reversed both decisions. The court would meanwhile adjourn for the night. And after reminding the bailiff of his traditional duty to withhold food, drink, and fire from the jurors, he added the novel instruction that they be denied a chamber pot.
The court reassembled at seven the next morning. Hungry, thirsty, and smelly the twelve men in the box may have been, but they were even more resolute. Bushel, asked for a verdict, repeated that Penn was guilty of speaking in Gracechurch Street. ‘To an unlawful assembly?’ inquired Starling, menacingly. ‘No, my Lord,’ replied Bushel, ‘we give no other verdict than what we gave last night; we have no other verdict to give.’ Starling, livid, declared that he would cut Bushel’s throat if he ever got the chance. The jurors were sent away again.
They eventually returned to reconfirm that they had nothing to add, and the judges finally snapped. An apoplectic Starling abused them for their choice of foreman, and threatened to slit Bushel’s nose. When Penn protested, the Lord Mayor told the jailer to gag him and spluttered that he should also be chained to a stake. Recorder Howel was no happier. ‘Till now’, he bellowed, ‘I never understood the reason of the…Spaniards, in suffering the inquisition among them: and certainly it will never be well with us, till something like unto the Spanish Inquisition be in England.’ The twelve men, he declared, would either convict or starve. Another night in Newgate’s fetid dungeons followed. But the jurors were no longer teetering on the brink. They had hit the bottom and bounced. On the following morning, they formally returned not guilty verdicts against both defendants.
Thomas Howel imposed swingeing fines on everyone, with indefinite jail terms for those who would not pay – and Bushel, along with three of his colleagues, chose jail. Their resilience was remarkable. Typhoid and dysentery were so endemic in prisons of the time that around one in ten inmates died awaiting trial, and no judge had ever before entertained a complaint against another’s decision to punish his jurors. But after they had spent ten weeks in Newgate’s excremental gloom, Lord Chief Justice Vaughan agreed to hear their request to be released – and he then freed them by way of the most significant legal ruling in the history of the jury trial. Two people, he insisted, could honestly disagree even when bound by oath. After almost half a millennium, the idea that a juror swore to what he knew rather than to what he believed was finally laid to rest. ‘The Verdict of a Jury, and Evidence of a Witness are very different things,’ explained Vaughan. ‘A witness swears but to what he hath heard or seen…but a jury-man swears to what he can infer and conclude from the testimony of such witnesses by the act and force of his understanding…’
Vaughan’s assertion of a power to clamp down on oppressive judges, made in a ruling known to lawyers ever since as Bushel’s Case, was soon being complemented by political changes on a broader front. Less than two decades after he handed down his judgment, the ‘Glorious Revolution’ of 1689 reasserted parliamentary control of the monarchy, finally putting paid to its ancient claims of absolute prerogatives. In the new climate, the judicial advantages previously guaranteed to the executive were steadily eroded. Accused traitors, and then felons in general, were given the right to call witnesses in the early 1700s and judges increasingly permitted prisoners to instruct counsel over the next few decades.
The consequences for criminal justice would be dramatic. Trials had for several centuries been free-for-alls, at which lawyers appeared only to represent the state and only in the most serious cases, while judges, jurors and defendants argued amongst themselves in the large majority. But the arrival of defence counsel, which was complemented by the professionalization of prosecution, turned trials into structured disputes over the meaning of legal history – or ‘precedent’, as the lawyers called it. As they cited from their tomes and cross-referred to each other’s cases, countless rules and conclusions were soon being firmed up. By the middle of the eighteenth century, the customary suspicion of certain types of evidence such as hearsay was being formalized into rules of admissibility and exclusion. Towards its end, an even more far-reaching change took place as the presumption of innocence, previously little more than an aspiration, was promoted to axiom.
The jury was simultaneously propelled into the moral stratosphere. The myth of justice that had been gripping England since the time of Walter Raleigh had found its institutional hero: a body of men so brave it would go to jail for the underdog, and so selfless it would forgo its collective chamber pot for love of liberty. There would always be some controversialists prepared to point out that jurors slept on the job and hanged children as well, but the most influential legal writer of the eighteenth century, William Blackstone, was not one of them. In his mammoth compilation of the criminal law, still annually updated and cited in England’s courts, he assured readers during the 1760s that judgment by twelve men ‘indifferently chosen, and superior to all suspicion’ was the ‘sacred bulwark’ of the nation’s liberties.
The system was also laying down deep roots far beyond Britain. King James had guaranteed jury trials in 1606 to the first emigrants to Virginia, and although settlers’ leaders would try nevertheless to monopolize power with magistrates’ courts, juries soon became commonplace across colonial America. William Penn himself crossed the Atlantic twelve years after his 1670 trial and the founding laws of Pennsylvania, the province that he established in honour of his father, promised that twelve men would have ‘the final judgment’ in every case. By 1735, when a New York jury acquitted a printer called John Peter Zenger in the teeth of a judge’s instructions that the truth of his words could be no defence to a charge of sedition, American jurors were flexing their muscles at least as much as their English counterparts. They were also idealized no less than in England. The colonists read Blackstone and devoured the anti-executive arguments of Edward Coke, harbouring hopes and grievances that were virtually defined by England’s political struggles, and the right to an open jury trial was close to the top of their wish list. It was the only guarantee contained in all twelve state constitutions that existed in 1776, while the federal constitution that was framed at Philadelphia eleven years later envisaged that the US government would suspend access to courts only in the event of ‘rebellion or invasion’.
There were, however, less exalted reasons for the popularity of juries. Trials simply offered a lot to see. Courts were becoming more packed than ever, regularly punctuated by fights and occasionally the scene of gunshots and murders.
(#litres_trial_promo) Entire communities could be agitated: perhaps most literally when the weight of spectators at East Grinstead in 1684 caused the floor to collapse, and perhaps most metaphorically during the notorious witchcraft prosecutions of Salem eight years later.
(#litres_trial_promo) Attendance also became an essential part of any respectable person’s education during the eighteenth century, as edifying as a trip to the local condemned cells or lunatic asylum. Foreign travellers, hoping to glean lessons about English liberty, became regulars. Gentlemen in the public gallery, eager to contribute to the increasingly legalistic debates, would sometimes interrupt to identify defects in the indictment and advance points in favour of a defendant.
The Old Bailey retained its particular cachet, with one observer complaining by 1786 that ‘no one who hath any real business to do can have access’, but provincial sittings, or assizes, offered a show that was in many ways even more fascinating. Judges would roll into town twice each year, solemn as sphinxes in their crimson robes and longbottomed wigs and preceded by up to twenty trumpeters and javelin-wielding officials. As they were wined and dined by the ruddy squires of the county, surrounding dungeons trembled into life. Prisoners clanked their way to the courthouse through the night, and after a sermon and swearing-in ceremony the next morning, the jurors would get to work on their case load – typically deciding within minutes whether to acquit or convict. Anyone found guilty of murder would receive an immediate sentence of death, but other convicts would be holed up to await the assizes’ grand finale. The judge would, on the appointed day of judgment, work his way up the ladder of wickedness and close the proceedings with one of two props. If he was going to leave with no blood on his hands, he would pull on a pair of white gloves. Rather more often, he would deliver his final sentences wearing the black cap of death.
The media mirrored and magnified the appeal of such occasions. Literacy had been sufficiently prevalent to generate junk journalism since the late sixteenth century, and by the eighteenth, true-crime pamphlets were routinely vying for public attention alongside other staples of the hack printer: recent comets, monstrous births, and so on. Continental writers, excluded from courtrooms and usually subject to censorship, could sometimes exploit the sexual scandals that were played out in ecclesiastical courts but were otherwise restricted to writing about the crime that preceded a trial and the punishment that followed it. Their British counterparts faced no such obstacles.
A twenty-four-page booklet had set the ball rolling in August 1566 with an account of the prosecution of Agnes Waterhouse – condemned for witchery with a diabolical dog and a white cat called Satan – and trial reports were soon a fixture on the pedlar’s cart. The cut-and-thrust of cross-examination usually offered ready-made dialogue. Even when absent the drama could be gripping: a report from the early seventeenth century, for example, told how the blanched corpses of three children began to bleed reproachfully when their murderous father obeyed a judge’s order to call out their name. One popular 1606 story neatly combined speech and silence, telling of a poor little dumb girl who had managed to croak accusingly at the man who had torn out her tongue notwithstanding that the jurors could ‘not see so much as [a] stumpe’ in her mouth. The evidence evidently spoke no less eloquently: the defendant went to the gallows.
By the 1670s, suitably salacious and brutal trials were being reported within days of a verdict. Eager readers in 1698 might have chosen to consider the depravity of Captain Edward Rigby, pilloried for attempted sodomy after picking up William Minton at a firework display in St James’s Park. Rigby pleaded guilty in the hope of a quiet life, but the court itself ordered that its proceedings be published. All literate England could soon pay to recoil from the news that he had ‘put his Privy Member Erected into Minton’s Hand; kist him, and put his Tongue into Minton’s Mouth’ before expounding on the antiquity of anal intercourse and placing a ‘Finger to [his] Fundament’. There were salutary lessons to suit every taste. Someone disinclined to weigh the wages of sin might, for example, have preferred to contemplate the quality of mercy – perhaps by pondering the luck of Mary Price, acquitted of bestiality in 1704 notwithstanding her housemate’s claims to have watched through the floorboards as she copulated with a dog.
But although jury trials were offering much to mull over by the eighteenth century, another aspect of criminal justice was still far more visible: the punishments that followed them. Tattooed and maimed convicts stalked the streets of every city, while lesser deviants sat in stocks and dangled from pillories, braving rotting animals and vegetables if they were lucky and storms of rocks if they were not. The displays were a feature of the landscape from Nuremberg to New York, but they were becoming especially impressive in England. Although a 1718 statute providing for transportation to the colonies removed plenty of convicts from the public gaze, public mutilations continued apace and the number of capital offences also soared – from about fifty in 1688 to well over two hundred in 1810. Few villages lacked for a whipping post, while executions could turn the humblest provincial town into a fairground, drawing thousands of visitors and pumping a fortune into the local economy.
London hosted the grandest spectacle of all, spewing out capital offenders from Newgate every six weeks for transportation across the capital to the Tyburn gallows. The procession had grown increasingly animated during the seventeenth century, and by the 1720s it was tumultuous indeed. The condemned travelled in open carts, noosed and astride their own coffins, as church bells tolled and crowds cheered them on their way. They wore anything they chose – perhaps velvet, scarlet, and silk with a white cockade to protest their innocence, perhaps a simple burial shroud to acknowledge their guilt – while high-spirited onlookers handed up tankards of ale, asking only that the prisoners buy a round on the way back. The jollity reached a climax under the triangular beams of Tyburn. Convicts who spoke with grace or humour received roars of approbation, while the surly and the sullen were booed and pelted. When the bodies were finally ‘turned off’ and the souls ‘launched into eternity’, to use the clichés of the day, chaos would erupt. While acquaintances of the dying tried to shorten their agonies by leaping for the dribbling, jerking legs, hangmen auctioned their clothes and emissaries from London’s surgeons’ colleges hopped from rope to rope in the hope of scavenging an unwanted cadaver.
The commotion, macabre even by the standards of the time, regularly attracted tens of thousands of spectators and exercised a fascination that spanned class and nationality. César de Saussure, a young Swiss gentleman who whiled away several months in London during the 1720s, was impressed enough to describe it at length in a letter to his mother. ‘You see most amusing scenes between the people who do not like the bodies to be cut up and the messengers the surgeons have sent for the bodies,’ he enthused. ‘Blows are given and returned before they can be got away, and sometimes in the turmoil the bodies are quickly removed and buried.’
Amusing it may have been, but the increasing frequency and intensifying violence of executions, at a time when juries were being sanctified and courtrooms were formulating rigid rules to guarantee fairness, had a peculiarly paradoxical effect. Trials became almost perverse rituals of cruelty and mercy, at which the dignity afforded the defendant resembled nothing so much as the head start given a fox. Whether a suspect lived or died was in many ways less important than that the chase proceeded by the rules. The responsibility for punishment was meanwhile shuffled around court until it belonged to everyone and no one, and all were free to lament the fate of the person they were killing. At a time when English and American juries were becoming celebrated for their ‘pious perjury’ – undervaluing stolen goods so as to spare petty thieves the gallows – they continued to convict most capital offenders (a full two-thirds in England, of whom 90 per cent in London were under twenty-one). The role played by judges was no more coherent. While they typically warned juries of the awful consequences of leniency, they simultaneously repaired the damage behind the scenes – recommending so many pardons that three out of four English death sentences were being commuted by the end of the eighteenth century.
It all made for emotional tensions aplenty. After Chief Justice Ryder had to deal with a young woman charged with killing her 6-month-old baby in 1754, he confided to his diary that he had been so affected by his own speech to the jurors ‘that the tears were gushing out several times against my will. It was discerned by all the company – which was large – and a lady gave me her handkerchief dipped in lavender water to help me.’ He nevertheless encouraged the jury to put aside any doubts about the defendant’s sanity, and remained sufficiently stoical to sentence her to death, with an instruction that her body be dissected for the benefit of medical science. Even more lachrymose was the 1777 forgery trial of Dr William Dodd. ‘The judges, the jury, the counsel, the spectators, all the world was bathed in tears,’ observed a bemused German visitor. Horrid though it sounds, the jury convicted after ten minutes and Dodd also hanged without a pardon.
For much of the eighteenth century, courtroom and gallows seemed to complement each other. Foreign visitors to England were repeatedly struck by the contrast between the safeguards of its trials and the brutality of its punishments, but in an era of Georgian gentility, when sentimentality and rigour were different sides of the same moral coin, the English rarely seemed to perceive a contradiction. Just as the pamphleteers began their accounts with the foul deed and ended with its just deserts, courtroom spectators were generally no less eager to see the deadly denouements. But towards the century’s end, the balance finally began to tilt away from executions, and would continue to tip for several more decades. The reason was not that the courtroom contest became even more thrilling. It was that punishments began literally to disappear.
Eighteenth-century thinkers, convinced that sufficiently rational laws could facilitate progress and possibly even perfection, were always fascinated by crime and punishment, and as each escalated in tandem they could not but wonder what was going wrong. Some argued that the brutality was counter-productive – pointing out, for example, that marking convicts by clipping their ears and slitting their nostrils was not likely to assist their employment prospects. Equally common, if more abstruse, was the belief that penalties had become decoupled from the crimes for which they were imposed, and that the symbolic links needed tightening. Thomas Jefferson was among those who took such a view, and in 1778 he drafted a law for Virginia that would have poisoned poisoners and castrated rapists. The American also believed, for reasons which are sadly not recorded, that it was appropriate to drill half-inch holes through the noses of female polygamists. His attempt to rationalize Virginia law was never enacted.
Capital punishment, which almost everyone agreed was not doing enough to deter crime, inspired particular concern. Some argued that its imposition was so capricious as to be useless, and gazed admiringly towards the proverbially enlightened despotisms of Russia and the Austro-Hungarian Empire, where it had just been abolished. More common was the belief that executions were inherently sound, and that a tad more terror would repair such defects as the system might possess. Britain’s Parliament in 1752 accordingly authorized judges to order the posthumous tarring and chaining of criminals’ corpses, as and when they thought that that would frighten more people for longer. Others envisaged even more dramatic ways to maximize the fear. James Boswell proposed in 1783 that convicts should be hanged without hoods ‘that the distortions may be seen’. In an ideal world, he argued, criminals would have their heads publicly smashed open with an iron mallet, before being jugulated with a machete and hacked apart with an axe.
But at the same time, there were others who felt that the public displays of aggression, no matter how well intentioned, were in fact doing more harm than good. As far back as 1725, one writer had warned that hangings were attended disproportionately by drunks, prostitutes, and pickpockets, and that potential criminals were enjoying the killings far too much to be deterred by them. Over subsequent decades, crowds had become increasingly violent, frequently trying to free prisoners and often launching assaults, up to and including murder, on the executioners and surgeons present. The phenomenon, seen across Europe, inspired British legislators in 1783 to replace the Tyburn processions with stationary executions outside Newgate. But the volatility also gave rise to far more radical proposals for reform. Tinkering with the spectacle was no solution to rising crime, argued some – because publicity itself was the problem.
The reasoning had first been set out in 1751. Henry Fielding, a London magistrate as well as the author of classics such as Tom Jones, had set out to explore why London seemed to be experiencing an upsurge in robberies. He assumed, like almost everyone else, that inefficient penalties were the primary cause; but instead of suggesting that their violence be increased, he proposed that it be hidden. According to Fielding, it was the delay between trial and execution that created pity for capital offenders, and it was the opportunity granted those offenders to address the gallows crowd that turned them into victims or heroes. Swiftness and secrecy were therefore essential. Prisoners should be hanged in the yard of the court in which they had been tried, within four days of conviction, watched in silence by the robed and bewigged judges who had sentenced them. ‘Nothing…can be imagined more terrible,’ he urged – and writer that he was, he knew that it was imagination rather than sight that produced fear. Shakespeare’s Macbeth served to illustrate the point. ‘A murder behind the scenes’, he explained, ‘will affect the audience with greater terror than if it was acted before their eyes.’
(#litres_trial_promo)
Fielding’s proposal was a little too avant-garde to be enacted, but it would influence legislators for the next century and heralded an era in which power would be expressed as much by concealment as by display. Branding irons, whipping posts, and pillories were being abandoned across the Western world by the late eighteenth century. Do-gooders, inspired by the hope of making convicts work, pray, and see the error of their ways, would soon perfect a new kind of prison – the penitentiary or reformatory – which made its debut in the eastern United States at the turn of the century. The causes driving the change varied considerably from country to country (a major impetus in Britain was the American Revolution of 1776, which robbed the country of its largest penal dustbin overnight), but the shift was seen throughout Europe and America. And during the nineteenth century it began to fuel demands to conceal the most visible punitive spectacle of all – the public execution.
Those who campaigned most strongly for reform were the politicians who most favoured the death penalty – because they feared that the unruliness and unpleasantness of the public ritual was beginning to threaten its continued existence. For precisely opposite reasons, resistance was led by abolitionists – men like Samuel Bowne, a Quaker Assemblyman in New York, who argued against the concealment of public throttlings in 1834 on the grounds that popular disgust would soon lead ‘to the entire abolition of capital punishment’. And the supporters of death were soon making the running. Their first success came with a ban on public executions in Rhode Island in 1833 – followed within two years by similar laws in Pennsylvania, New York, New Jersey, and Massachusetts. British opponents of capital punishment fought a similar battle to keep the horror visible, but they too were destined to be outmanoeuvred. On 29 May 1868, three days after one last hanging – before a seething crowd that yelled ‘body-snatcher’ at the executioner as he cut down the corpse – supporters of the death penalty were able finally to hide it behind prison walls.
Public hangings very probably originated as a sacrificial rite and their concealment in many ways restored the mystery that a century of rationalism had threatened to dispel. For the most immediate effect, just as abolitionists had feared, was to stabilize an institution that had at certain points in the early 1800s begun to seem very wobbly indeed. British hangmen would continue secretly to snap necks for another century. In the United States, where men and women are still poisoned and gassed in hidden chambers, popular support for the death penalty may well be stronger than it was two hundred years ago.
But the change also had another consequence – for as the punishments that had exemplified Western justice for centuries vanished, criminal trials assumed a more prominent position than ever before. New York produced America’s first true-crime journal, the National Police Gazette, in 1845 – a decade after its legislature did away with public hangings – while the Illustrated Police News first hit London’s news-stands in 1864, just four years before Britain’s Parliament followed suit. A similar shift was seen elsewhere in Europe. In Prussia, the first German state to end public executions, the same statute that relocated the beheadings to prison yards in 1851 opened the kingdom’s trials to the public. Equivalent laws did the same throughout the rest of Germany over the next three decades, and by the end of the century day trips to court had become a popular pastime among middle-class families across the country.
In France, the story was a little different. The legal reforms that followed the Revolution of 1789 threw its courts open to the public and guaranteed defendants a right to counsel. They also gave ordinary citizens a role in judging criminal cases, creating a form of the jury that spread, through cultural influence and Napoleonic campaigns, from Madrid to Moscow over the next three-quarters of a century. The country bucked the penal trend by continuing to stage public executions right up to 1939, later than any other country in the Western world, but its experience of publicity also exemplified the growing significance of the criminal trial.
Over the course of the eighteenth century, France’s liberal thinkers had developed a deep admiration for the transparency of English criminal justice. ‘In England no trial is secret,’ Voltaire had explained in an impassioned attack on the inquisitorial system in 1762, ‘because the punishment of crime is meant to be a lesson to the public…and not vengeance for one person. Witnesses testify in open court and any trial of interest is reported in the newspapers.’ Attitudes towards the jury itself had always been considerably more equivocal however, and French jurists were very soon having second thoughts about its wisdom.
In 1804, soundings were taken from seventy-five courts across the nation as to whether juries should be retained. The Anglophilia of men like Voltaire was a thing of the past – not least, because France was at war with Britain – and the fifty-two jurisdictions that replied were split precisely in half. One court that expressed an especially firm non was that of Doubs. Jury service, argued its judges, was a task that could appeal only to citizens as primitive as those of England. ‘At the theatre, the Englishman only cares for ghosts, lunatics, dreadful criminals and drawnout murders; he scurries to animal fights, and probably regrets the passing of gladiatorial contests,’ they observed. ‘Who can tell if he does not seek the functions of a juror for the pleasure of watching a criminal struggling with his conscience, with the death that awaits him? The Frenchman, on the contrary, is delicate in all his tastes; he flees from any sight which could disagreeably awaken his sensitivity; could he take any pleasure in wielding the bleeding sword of justice?’
The assessment was an audacious one. Frenchmen had just guillotined thousands of their compatriots, and possessed such enthusiasm for the bleeding sword of justice that they would watch its blade rise and fall in public for another 135 years. The sight of squirming criminals was also doing little to repulse them: the world’s first newspaper dedicated exclusively to court reporting, the Gazette des tribunaux, was launched within months of the 1791 law that had thrown open the doors of France’s trials. But the judges of Doubs were chauvinistic rather than simply wrong. Prurience had always been potential in English trials, even if its source had been publicity rather than juries. And as France moved from inquisitorial secrecy to routine openness, it would take to the voyeuristic pleasures of the courtroom with delight.
France’s cities, like others throughout mainland Europe, were soon making strenuous efforts not merely to accommodate a growing popular interest in courtrooms, but to promote it. ‘Palaces of Justice’ were built across the country during the nineteenth century: newfangled monuments to open justice, packed to their triforia with crucifixes, statuary, and all the trappings of tradition that its absence could demand. As congregants flocked in, it became increasingly common to issue tickets in order that the classes and sexes could be properly segregated – a development simultaneously seen in England – and the trials of lowlifes were soon pulling in the haut monde. The December 1869 prosecution of Jean-Baptiste Troppmann for multiple murder inspired particular interest. His case had been intriguing Parisians from the moment that the six victims had been laid out behind plate glass at the city morgue three months before, and more than twenty thousand applications were made for admission passes. Only several hundred were lucky enough to make it into the trial chamber, a magnificent judicial temple inaugurated just a year before, but few who did so would have been disappointed. For three days they trained opera glasses on the dock, perhaps picking up clues from Troppmann’s physiognomy, and pondered the table that dominated the room – spread with bloody garments, blades, and a jar swimming with the stomach contents of one of the deceased. Aristocrats, socialites and workers attended in force, and so many women were present that Le Petit journal marvelled how ‘strange’ it was that ladies ‘raised in velvets, lace, and silk’ should display such ‘mad unbridled passion…for the coarse details and repugnant debates’ of the case.
That particular concern was widely shared. When Adelaide Bartlett stood trial at the Old Bailey in 1886 for chloroforming her husband – in a case involving a love triangle and liberal condom use – the judge publicly condemned the relish of women in the public gallery for evidence that he and the jurors could hear only with shame. By 1896 one French doctor was expressing not only distaste, but fear. The libertines of fin-desiècle France had developed something of a vogue for throwing acid into their lovers’ faces, and Paul Aubry proposed that even reading about a vitrioleuse might be enough to launch the female reader (who was ‘often not very intelligent’) on some passionate mischief of her own. ‘What else does she need to excite [her] imagination?’ he asked rhetorically. ‘It is easy to throw vitriol at someone [and] one is sure to be acquitted and to be the subject of gossip for forty-eight hours.’
But whatever the other moral consequences of the intensifying courtroom drama, the Troppmann trial suggested that the weaker sex was made of rather sterner stuff than their would-be protectors realized. Following the defendant’s conviction, several distinguished Parisiennes wrote to Le Figaro to complain that the newspaper’s correspondent had not acknowledged their presence at court. René de Pont-Just, though as suspicious of female spectators as the next man, was at least capable of irony. He drily explained that the courtroom audience had included ‘both ladies and women’ and that he had held his tongue for fear of confusing the danses with the femmes.
Jury trial had come a long way since a desperate murderer called Alice had squealed on five of her co-accused at Westminster in 1220. Just how far was marked, in ways both geographic and historical, by the 1880 publication of Fyodor Dostoyevsky’s The Brothers Karamazov. Juries had been introduced to Russia fourteen years before and the novel concludes with the prosecution of Dmitri Karamazov for the murder of his father, in a courtroom that would have been familiar to readers from Paris to San Francisco. Tickets have been snapped up by luminaries from miles around, lorgnettes twinkle in the audience, and counsel joust across a table stacked with a bloodied silk dressing gown, a blood-stiffened handkerchief, a pistol, a pestle, and a slender pink ribbon. The spectacle, as compelling as it is mysterious, somehow implicates everyone present – and the shared shame is spelled out when Dmitri’s brother, Ivan, deliriously characterizes the spectators’ lust for bread and circuses as equal to any act of parricide.
Ivan Karamazov had very personal reasons for his distress, but it was shared by right-thinking folk everywhere. French commentators and English hacks rarely reported a trial without tut-tutting at the onlookers. If it was not the fact of their femininity, it might be their eagerness to applaud, their willingness to bring food to court, or their morbid curiosity – attacked, of course, in articles that went on to describe every twitch and tremor of the defendant.
The concerns all echoed those that had been expressed not so long before about public executions. But the bread and circuses of the courtroom constituted a very different diversion from the gallows spectacle. Sobs, applause, and whispers had replaced the howls of hatred. Packed lunches had taken the place of Tyburn’s gin-soaked procession. And although the verdict in a high-profile case could still bring traffic to a halt – gridlocking the entire West End of London in the case of one murder acquittal in 1907 – crowds now preferred queueing to rioting. A decision not to issue tickets might cause the lines to form long before sunrise, and the crown might over-flow far beyond the court itself, but spectators always knew their place. When Dr Hawley Harvey Crippen was arraigned for his wife’s murder in 1910 – at a trial which saw a shred of her skin passed around on a dish – a multitude of the ticketless swarmed outside the Old Bailey until police steered them into an empty court. Only after several hours of picnicking and chattering did they realize that they had been duped – at which point they drifted home.
The jury trial had further to travel, but by the turn of the twentieth century it had come of age. Born from magical rituals and only tempered by reason, it had always enacted the difference between right and wrong as much as it had decided it. And with the end of public executions, it had become the only judicial show in town: a touch of evil for an era that no longer thought it seemly for crowds to jump at the legs of a dying man.
4 The Witch Trial (#ulink_8cabaf44-542a-5bbb-8365-b07a15b3beb8)
I have to fight against countless subtleties in which the Court is likely to lose itself. And in the end, out of nothing at all, an enormous fabric of guilt will be conjured up.
FRANZ KAFKA, The Trial
By the fifteenth century, two very different models of criminal justice had established themselves in Europe. On the continent, judges asserted the wisdom of the Romans and the authority of canonical law – and the right to investigate any crime they detected. In England, on the other hand, kings had already delegated considerable responsibility to ordinary men, whose role was only to assess the complaints and defences of people who came before them. The jurists of Europe were honing their inquiries to logical perfection; the jurors of England were entirely unversed in legal theory and so unlikely to be literate that evidence was invariably spoken or shown to them. The history of the witch trials, a saga that lasted two centuries and claimed the lives of between sixty and a hundred thousand people, would encapsulate the differences between the systems. It would begin in the hushed monasteries and torture chambers of central Europe, and would end amidst the high drama of Salem. Subtle doctrines of theology would transform superstitions into denunciations, and the secrecy of the inquisitorial process would generate a vicious cycle of confession and execution. But the publicity of jury trial would produce the most spectacular prosecutions of all.
Medieval Christianity had an instinctive distrust of anyone who dabbled with the supernatural. The Book of Exodus warned against ‘suffer[ing] a witch to live’, while Leviticus recommended the stoning to death of anyone with ‘a familiar spirit’, and Christian rulers everywhere were paying lip service to the rules by the end of the first millennium. But anxious though the Church was to kill sorcerers in theory, the practical shortcomings of Dark Age logic always made it hard to define them. Without firm theories of cause and effect, it was impossible to pin down the relationship between a curse and a consequence. The significance of healing was no easier to understand; just as a potion that worked might be magic, a failed doctor might as well be a magician. To confuse matters further, orthodoxy insisted for centuries that no one but God could bend or suspend the laws of the cosmos. Ever since St Augustine had explained in the fifth century AD, that only He was capable of turning men into beasts and birds, Catholic theologians had taught that sorcery was either ineffective or blessed. The idea that people could actually fly and work evil magic was therefore, in the words of a tenth-century canon, an ‘error of the pagans’ that wrongly imagined ‘some divine power other than the one God’
The late medieval Church consequently had a relatively relaxed attitude towards the forces of darkness. Some demons certainly seemed to be up to no good – flitting through the night as incubi or succubi in search of casual sex perhaps, or cleaning up at a dice table before exiting with a sulphurous whoosh – but chroniclers knew of others far more benign. In the early thirteenth century, an English monk called Roger of Wendover told how Satan had once helped a nun fight off a rapist. Caesarius of Heisterbach reported that he had even lent support to the Church’s war on heresy. The Bishop of Besançon had invoked him in order to ask how two troublesome preachers were able to walk on water and pass through flames, and the Devil had confided that they had infernal charms sewn into their armpits. When the men declined to disclose what lay under their flesh they were flayed by force and burned at the stake. The powers of hell, used wisely, could be extremely helpful indeed.
But at the very same time that both men were writing, the Church’s attitude to Satan was undergoing profound change. Catholicism had been at war since 1095, when Pope Urban II had blessed the first crusaders’ attempt to capture the Holy Land; and since 1208, when Innocent III launched his attack on the Cathar heretics, its struggle had become one of self-definition as much as survival. The very idea of Catholicism was being challenged – and in the name of combating a heresy that overestimated evil, the Church would itself promote Lucifer from an inferior demon to the Prince of Darkness. The Cathar belief that Satan was slugging it out with God and had the upper hand on earth was already being caricatured as a celebration of wickedness rather than an explanation of it. Church propagandists were asserting that heretics worshipped their savage deity in person, generally by kissing his anus, and the mischievous demons of picaresque tradition were giving ground to diabolical creatures of a far more sinister hue. The stranger at the tavern described by Thomas de Cantimpré in the mid thirteenth century was not a gambler with the luck of the Devil but someone who bought a man’s soul for a drink – and unsheathed his talons at closing time to call in his due. By the late 1300s, macabre stories were telling of men who begged from their deathbeds to have their right hand amputated, forced in extremis to reveal that the limb was pledged to Satan and anxious not to die with the debt unredeemed. Similar stories would one day attach themselves to the exploits of a sixteenth-century conman called Dr Johann Faust – but the pact attributed to his literary reincarnation was already being drafted.
The changing superstitions were transformed into doctrine at the end of the thirteenth century when a Dominican monk called Thomas Aquinas subjected demons – along with the rest of creation – to detailed analysis. The scholar, concerned to establish a rational basis for God’s existence in an intellectual climate that demanded proof for every proposition, would establish an orthodoxy that would hold for three more centuries, and his examination of the spiritual world generated some especially alarming conclusions. While recognizing that some people thought demons were illusory, he scrutinized the evidence and showed that they were in fact ubiquitous – and dangerous. Incubi and succubi, for example, were not just cruising whores, but diabolical transsexuals who reaped sperm from men and sowed it into women, generating giants in the process. Although that specific hazard was something from which Aquinas claimed miraculous immunity,
(#litres_trial_promo) less sanctified individuals faced serious risks. Demons were so malicious that they sought pleasure not for its own sake but only to lead humans to perdition. Magicians were especially liable to be outsmarted by creatures of the netherworld. Indeed, the mere act of invoking a demon meant that a sorcerer was making a deal with death and a pact with hell.
The stock of ritual magic, once the preserve of only the wisest Christians, was plummeting, and a series of events that occurred south of Paris in 1323 offered a vivid indication of how far it was to fall. They began when shepherds driving their flocks past a crossroads noticed two long straws sticking out of the ground and heard a distant miaow. Local inquisitors, summoned to the scene, began digging. It was not long before their spades hit a chest containing a coal-black cat and several vials of consecrated oil and holy water. Inquiries among local carpenters led to the arrest of one Jean Prévost, who explained that he had been trying to assist a group of Cistercian monks from the nearby abbey. They had hired him, along with a magician called Jean Persant, to help recover the abbot’s stolen treasury and the plan had been to disinter the cat after three days, skin it alive, make three thongs from its hide, and consume the contents of its stomach. Prévost and Persant anticipated that a demon called Berich would then point them in the direction of the thief. The scheme would have raised few eyebrows just a century earlier, but by the 1320s it was looking distinctly outré. The monks were collectively degraded and condemned to lifetime incarceration, while the defendants were burned to ashes. Persant suffered the additional discomfort of having the cat tied around his neck at the stake.
Similar prosecutions proliferated throughout the fourteenth century, but it was reverberations from the longstanding campaigns against heresy in southern Europe and Germany that finally gave the fears the distinctive shape that is nowadays associated with the witch-hunts. The papal Inquisition, though successful in shattering Catharism, had merely scattered many of its most fervent adherents, and as refugees had poured into Germany and the Savoy, a domino topple of dissent had begun that would set off anti-Catholic movements for centuries. Officials increasingly responded by linking their concerns about magical pacts with the allegations of sexual diabolism that the Church had long been levelling against its enemies, and during the mid fifteenth century all the cross-pollination finally bore fruit. In a series of trials across Burgundy and the Savoy, tortured defendants began to confess to a form of mischief so distinctive as to amount to an entirely new offence. They had, they now admitted, flown on beasts and greased sticks to huge assemblies at which Satan had manifested himself in the form of a lascivious creature such as a goat, dog, or monkey. They had repeatedly kissed his rear end. They had also prostituted themselves to demons, raised storms, cast spells against their neighbours, and performed acts against nature until cockcrow. It was a crime whose time had come.
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Sadakat Kadri
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Дата публикации: 16.04.2024
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О книге: In an extraordinary history of the criminal trial, Sadakat Kadri shows with wit, legal insight and a travel writer’s eye for detail, how the irrationality of the past lives on in the legal systems of the present. A bold and brilliant debut from a prize-winning writer.‘The Trial’ spans a vast distance in time, opening in the dread silence of the Egyptian Hall of the Dead and ending with the melodramas and hubbub of the 21st-century trial circus. Reconciliation and vengeance, secrecy and spectacle, superstition and reason all intertwine continually. The book crosses from the marbled courtrooms of Athens through the ordeal pits of Anglo-Saxon England, past the torture chambers of the Inquisition to the judicial theatres of 17th-century Salem, and from 1930s Moscow and post-war Nuremberg to the virtual courtrooms of modern Hollywood.Kadri shows throughout how the trial has always been concerned with doing more than guaranteeing fairness and holding human beings to account for their deliberate crimes. He recounts how insentient and irrational defendants from caterpillars to corpses were once summonsed to court, before being exiled for their failure to attend or sentenced to die again – and argues that the same urge to punish lives on in today′s trials of children and the mentally ill. But although Justice’s sword has always been double-edged – as ready to destroy a community’s enemies as to defend its dreams of due process – the judicial contest also operates to enshrine some of the western world’s most cherished values. The show trials of Stalin′s Soviet Union were shams, but Guantanamo Bay and Abu Ghraib are a reminder that a lack of a trial is equally unjust, and at a time when our constitutional landscape seems to be melting away, an appreciation of the criminal courtroom’s history is more necessary than ever. As the Labour government launches an almost annual attempt to truncate trial by jury, and as authorities on both sides of the Atlantic are indefinitely detaining people in the name of an endless war on terror, ‘The Trial’ could hardly be more timely.Note that it has not been possible to include the same picture content that appeared in the original print version.