The Trial: A History from Socrates to O. J. Simpson

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.