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

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.