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

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.’

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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,