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The Trial: A History from Socrates to O. J. Simpson
Sadakat Kadri
In an extraordinary history of the criminal trial, Sadakat Kadri shows with wit, legal insight and a travel writer’s eye for detail, how the irrationality of the past lives on in the legal systems of the present. A bold and brilliant debut from a prize-winning writer.‘The Trial’ spans a vast distance in time, opening in the dread silence of the Egyptian Hall of the Dead and ending with the melodramas and hubbub of the 21st-century trial circus. Reconciliation and vengeance, secrecy and spectacle, superstition and reason all intertwine continually. The book crosses from the marbled courtrooms of Athens through the ordeal pits of Anglo-Saxon England, past the torture chambers of the Inquisition to the judicial theatres of 17th-century Salem, and from 1930s Moscow and post-war Nuremberg to the virtual courtrooms of modern Hollywood.Kadri shows throughout how the trial has always been concerned with doing more than guaranteeing fairness and holding human beings to account for their deliberate crimes. He recounts how insentient and irrational defendants from caterpillars to corpses were once summonsed to court, before being exiled for their failure to attend or sentenced to die again – and argues that the same urge to punish lives on in today's trials of children and the mentally ill. But although Justice’s sword has always been double-edged – as ready to destroy a community’s enemies as to defend its dreams of due process – the judicial contest also operates to enshrine some of the western world’s most cherished values. The show trials of Stalin's Soviet Union were shams, but Guantanamo Bay and Abu Ghraib are a reminder that a lack of a trial is equally unjust, and at a time when our constitutional landscape seems to be melting away, an appreciation of the criminal courtroom’s history is more necessary than ever. As the Labour government launches an almost annual attempt to truncate trial by jury, and as authorities on both sides of the Atlantic are indefinitely detaining people in the name of an endless war on terror, ‘The Trial’ could hardly be more timely.Note that it has not been possible to include the same picture content that appeared in the original print version.
The Trial
A History from Socrates to O.J. Simpson
Sadakat Kadri
For my mum and dad, with love.
Contents
Cover Page (#uef8accc1-4701-58e1-a982-5e2e0c5d5d62)
Title Page (#ud38a62f3-0f50-5368-9bf8-fe3ccbf42f6d)
Dedication (#u2da4f0a1-ddb4-585e-a4a1-f3089af7a7f0)
Introduction (#ude911736-da39-5c20-9772-a3db93cbb97d)
1 From Eden to Ordeals (#ufcd1e829-c26a-56a6-bf5f-55ad03e508d9)
2 The Inquisition (#ue57f27dd-688f-5ba5-8b94-8a82ff712c97)
3 The Jury Trial (1) (#u69f9e794-5d11-50e7-96bd-c1b8892b8b4d)
4 The Witch Trial (#u3b2f0636-b6da-524e-b73e-71d8596e4951)
5 The Trials of Animals, Corpses, and Things (#litres_trial_promo)
6 The Moscow Show Trials (#litres_trial_promo)
7 The War Crimes Trial (#litres_trial_promo)
8 The Jury Trial (2): A Theatre of Justice (#litres_trial_promo)
Conclusion (#litres_trial_promo)
Acknowledgements (#litres_trial_promo)
Further Reading (#litres_trial_promo)
Notes (#litres_trial_promo)
Index (#litres_trial_promo)
P.S. (#litres_trial_promo)
About the author (#litres_trial_promo)
The Dream of Justice (#litres_trial_promo)
LIFE at a Glance (#litres_trial_promo)
A Writing Life (#litres_trial_promo)
About the book (#litres_trial_promo)
The Difference Between God and Lawyers (#litres_trial_promo)
Read on (#litres_trial_promo)
Sadakat Kadri’s Suggested Further Reading (#litres_trial_promo)
Films to Watch (#litres_trial_promo)
The Web Detective (#litres_trial_promo)
About the Author (#litres_trial_promo)
Praise (#litres_trial_promo)
By the same author (#litres_trial_promo)
Copyright (#litres_trial_promo)
About the Publisher (#litres_trial_promo)
Introduction (#ulink_ff6d6bd6-9f75-57fb-b749-f59e86429cb7)
In August 1792, as the French Revolution hurtled towards its years of Terror, Paris was seized by panic. Armies from Prussia and Austria were marching on the capital to restore King Louis XVI to the throne, and radicals had responded by slaughtering several hundred of his Swiss guards and placing the royal household under arrest. To the sound of boots and drums and bells, the capital mobilized, aware that the commander of the invading forces had sworn vengeance on every Parisian if the king’s person was violated. When the Germans reached Verdun, just a hundred miles east, the possibility of a bloodbath became imminent. As fear mounted, the pamphleteers and propagandists of the Revolution identified a threat even closer to home than the Prussians: the thousand or so royalists and clerics who were being held in the municipal jails. ‘You have traitors in your bosom,’ warned Danton. ‘Without them the fight would have been soon over.’ ‘The prisons are full of conspirators,’ thundered the Orateur du peuple. ‘The first battle we shall fight will be inside the walls of Paris.’ The prescription of Marat was most precise of all. ‘The people’s duty,’ he wrote, was to ‘run [the traitors] through with a sword’.
It soon became clear that many Parisians were inclined to agree. As a train of cabs carrying some twenty captive priests inched its way through the seething capital on 2 September, one of the passengers, deluded or desperate, lashed out with a stick. It was a bad move. The man struck by his assault leapt onto the carriage step, thrust a sabre three times through its open door, and raised the glistening blade to the roaring crowd. The passengers in the cab were cut to pieces and at the convoy’s destination, a prison called the Abbaye, a mob broke down the doors and turned pikes and bayonets onto those who had survived. The murders set off a holocaust. Some twelve hundred prisoners were killed over the next four days and nights, despatched inside prisons that echoed with their screams and stacked high on streets and bridges that ran with their blood. It was the deadliest single atrocity in a Revolution that never lacked for violence – but it was distinguished by more than its scale. Almost as soon as it had begun, the Parisian authorities sent an urgent instruction to those carrying it out. The people’s enemies were not to be killed so quickly, it warned. They had to be tried first.
One of those who faced the revolutionary music was army officer François Jourgniac de Saint-Méard, who was taken from his cell in the Abbaye during the early hours of 4 September and led into a darkened chamber. About a dozen men were present. Some stood around in bloody shirts and aprons, machetes hanging from their waists; others dozed on the sidelines. Behind a bench at the far end, his gaunt features illuminated by the smoky flames of two torches, was the tall, dark, and tubercular figure of Stanislas Maillard, a 29-year-old veteran of the storming of the Bastille who had assumed the status of tribunal president. Saint-Méard was detained behind crossed sabres as a soused sansculotte handed up a reference for the 70-year-old man whose trial was reaching its conclusion. Maillard waved it aside. ‘They are useless, these appeals for traitors,’ he grumbled. ‘My hands are washed of it; take [him] away.’ As the old man was dragged to the back of the room, he struggled furiously with his captors. ‘It is frightful!’ he protested. ‘Your judgment is murder!’ Maillard scribbled into his files as the doors were opened onto the street. Men and women outside, skulking like dogs around an abattoir, suddenly galvanized into a pack. It swallowed its prey with a great roar. Maillard continued to leaf through his papers. ‘Another!’ he called.
Saint-Méard’s guards tugged him to the centre of the room. Shadows leapt as defendant and judges peered at each other across a table littered with pipes, inkstands, and half-drained bottles of liquor. Why had he been arrested, demanded Maillard. Saint-Méard replied that he was thought, wrongly, to have edited a royalist newspaper. A single lie, snapped another voice, would mean instant death. If he was innocent, why had he been charged?
He had begun to reply when a priest was suddenly hauled into the room. A stupefied Saint-Méard watched as the cleric was bombarded with a flurry of questions, sentenced to death, and then pulled away, pleading for mercy. The judges invited him to continue. How could they be sure that documents he had handed up were not forgeries? Saint-Méard suggested, very hopefully, that they should adjourn his case while they checked – only to be interrupted again. A jailer, pale with fear, burst into the room to report that a prisoner was clambering up the chimney. Maillard warned grimly that if he made good his getaway, the turnkey would pay with his life. Everyone’s attention switched to the new drama, as pistols were fired up the flue and a heap of straw was lit in the fireplace. Only when the would-be fugitive dropped into the hearth – where, stunned and ablaze, he was beaten to death – did the trial resume. You have told us many times what you were not, noted one of the judges, but what is it that you are? Saint-Méard desperately replied that he was a patriot and explained that, far from plotting against the Revolution, he had considered it too timid. The claim, addressed to men who were diligently murdering in said Revolution’s name, was an audacious one. None of his judges looked convinced. Most appeared unmoved. Some seemed asleep. But their inscrutability masked one final surprise.
‘I am for granting him his liberty,’ declared Maillard. His fellow judges expressed their agreement, with joy rather than reluctance, and an astonished Saint-Méard was embraced by his jailers. And as he was escorted into the street between the torches of an honour guard, the mob that had just torn a man limb from limb parted to let him through, with cries of ‘Vive la nation!’
Saint-Méard’s experience was far from unique. Around one in seven of those at the Abbaye were spared, and the acquittals were repeatedly greeted with jubilation or tears from judges, guards, and citizenry alike. Historians have typically characterized the trials as shams but, understandable as that is, it raises an obvious question – who was being fooled? Saint-Méard struggled to believe that the proceedings were something more exalted and succeeded to the extent that his life was saved. His judges were partners as much as adversaries, from the moment that they asked him to explain his arrest to the point when they freed him. Far from deliberately performing the preamble to a murder, everyone was longing to enact a dream of liberty, equality, and fraternity. And the delusions created their own reality.
The law has become so closely associated with reasoned deliberation that it is sometimes hard to think of criminal trials as anything other than inquiries – but they have always performed a function that goes far beyond that of establishing who did what to whom. The first judges were priests, whose punishments were as sacrificial as they were penal, and the law has ever since asserted the power most proper to gods: the ability to rebalance a cosmos knocked out of kilter. Since the days of ancient Athens, there is no wrong that it has not somewhere claimed to right – even when no human defendant has been available to carry blame. In the courts of early modern Europe, creatures from beetles to bulls were regularly prosecuted, defended, and condemned at public expense. English juries for several centuries returned homicide verdicts against mischievous objects from haystacks to locomotives. Lawyers discovered new categories of criminal, from traitors to werewolves, whenever popular passion or private fear required. The long arm of the legal process even reached into the grave: for well over half a millennium, the bodies of dead criminals were brought into court to be accused by witnesses, defended by advocates and, if convicted, punished by the public executioner.
The cowls have metamorphosed into gowns and the incantations have turned to jargon, but ancient impulses still quiver around every courtroom. Rational concerns and logical argument typify any given case, but the terror of infanticide and Devil worship that once sent witches to their deaths was resurrected, in the form of satanic sexual abuse allegations, during the 1980s. Animals and corpses are no longer put on trial, but the urge to punish defendants regardless of their mental state lives on in prosecutions of children and the mentally ill. Perhaps the best example of the continuing faith in legal omnipotence comes from a case that never quite happened. In the spring of 1949, the first president of the Israeli Supreme Court, Moshe Smoira, received dozens of petitions from Christian clerics around the world. His country was less than a year old and had just fought off five Arab armies committed to its destruction, but the writers had few doubts about the urgency of their appeal – and none at all concerning the legitimacy of the Jewish state. Would he please, they asked, reopen the proceedings of the Sanhedrin and overturn the conviction of Jesus Christ?
This book quickened in 2000 in London, where I had been working for seven years as a criminal barrister. Almost a decade before, I had lived in post-revolutionary Prague and had then been struck by the extent to which many Czechoslovakians seemed to be blaming others to avoid tough questions about their own contributions to the communist era. I had vaguely wondered then if such thoughts might stretch into a book on scapegoats and soon decided that they would not. The weird dynamic of naming and shaming continued to interest me, however, as I represented villains both innocent and guilty, and by 2000 I was ready to try again. This time, I had a far clearer structure in mind. By writing a history of the criminal trial, stories rather than theories would drive the book forward.
Events elsewhere would further delineate its structure. Before Prague I had studied at Harvard and qualified for the New York Bar, and it seemed a sensible idea – or at least a pleasant one – to relocate to the United States. I reached New York in the summer of 2001. By mid August I was ensconced in a small studio with a splendid view over Manhattan’s financial district. Thus it was that on 11 September I watched from my windows as the towers of the World Trade Center burned and collapsed. Over subsequent weeks I wandered a city in mourning, personally unable to write and convinced that little was now of less significance to anything than an analysis of the criminal trial. I would spend another two and a half years in the United States and my mood would pass. But others, many of them in high places, were expressing similarly gloomy conclusions about the redundancy of the criminal process – and in their case, the trauma would have lasting effects. Over the next few months, a landscape familiar to me since law school seemed sometimes to be melting away. Several legal commentators were suggesting that the constitutional right to silence should be abolished. A Harvard law professor whom I had once respected proposed that it might be time to introduce a right to torture in its place. The administration of President George W. Bush, meanwhile, embarked on a policy of deeming entire categories of people, American and foreign, to be subject to indefinite detention without a right of access to courts, let alone a right to public trial.
Emergency powers have been invoked to combat terrible crimes since the days of heresy and witchcraft, and the fact that twenty-first-century commentators were readopting stances that inquisitors had abandoned in the eighteenth soon reassured me that a little historical perspective would not go amiss. But the aftermath of September 11 also sharpened the focus of my book. I had always anticipated that a central theme would be the conflict between reason and emotion – a tension that galvanizes any courtroom – but in the new climate a more fundamental aspect of that link came to the fore: why trials take place at all. For at the same time that hundreds of people were being accused without prosecution, official talk of justice – and even Infinite Justice – was reaching a crescendo. Governments are not the only component of a criminal justice system, but the reasons that they avoid courts increasingly came to seem at least as significant as the reasons that they resort to them. The relationship between secrecy, publicity, and transparency consequently became central to my book.
From the very outset, I chose not to conduct interviews. Contemporary topics such as capital punishment and the war on terror would have called for a range of views from participants ranging from defendants to judges. Anthropologists, sociologists and political scientists, not to mention historians and lawyers, might all have had other worthwhile things to say. Finding experts to cover every subject evenly would have been beyond my time and inclination. The book quotes from countless chronicles, pamphlets, transcripts and newspaper reports but mine is the only voice to keep the babble in line.
The task that lay ahead when I began was a daunting one. The tale I intended to trace began more or less at the dawn of time, hopped back and forth between centuries, and demanded that I address subjects as dark as child abuse and terrorism with as light a touch as possible. It was a tall order, and attempting to fulfil it gave the book a very particular structure. Rather than use a straightforwardly chronological approach, which lacked flexibility, or compile a compendium, which would have bored me let alone anyone else, I divided the work into eight thematic chapters that proceed in roughly historical order. They begin with the religious rituals of the classical and barbarian worlds and end in the trial circuses of today, and several address specific aspects of twenty-first-century justice. Each dovetails into the next and with luck, they combine to form more than the sum of their parts.
Several ideas run through the chapters, but one simple theme could be said to link them all: the tension inherent in the criminal process between the desire to punish and the fear of making a mistake. Courts have collectively spilled at least as much blood as the people they condemned, but they have always aspired to more than violence. The oldest laws yet to be discovered, enacted by Babylon’s King Hammurabi in the eighteenth century BC, worried about injustice to the extent that false witnesses were to be punished as harshly as those who were properly convicted. And although the sword of righteousness has been in play since King Solomon, confronted with two women claiming the same child, threatened to slice it in two and wisely surmised that the impostor was the one who agreed. Justice has wielded another tool for even longer. Four and a half thousand years ago, when Hammurabi’s dynasty was unknown and Athens’ Golden Age shimmered as far in the future as it now lies buried in the past, the priests of Egypt were already venerating the goddess Ma’at, whose scales measured out justice for the dead. In the Hall of Two Truths, watched by a horrid hybrid of cat, crocodile and hippopotamus called Am-Mit, she would place the hearts of those who had just died on one pan, and drop the feather of truth onto the other. If the feather sank, the departed soul would gain entrance to the Kingdom of the Dead. But if it rose, outweighed by the heart’s burden of deceit, Am-Mit would be fed – and its owner would be abandoned to oblivion.
The balance remains the most potent image of justice in the Western world. But as it migrated into modern Europe from Egypt and Babylon, via Jews, Greeks, Romans and barbarians, the meaning of its symbolism would be decisively transformed. No story better exemplifies that than one from the career of Sir Edward Marshall Hall, a famous British barrister of the early twentieth century.
Marshall Hall was defending one Edward Lawrence, charged in 1909 with having murdered his lover with a gun. Lawrence entered the dock with one foot already on the scaffold. He had admitted to police that he had shot her, and declared that he was ‘glad’ to have done so, because she was ‘wicked’ and ‘best dead’. But by the end of the defence case, words that had seemed so damning no longer sounded worse than callous. Lawrence had claimed from the witness box that the victim died accidentally as he was pulling a gun from her. He had re-enacted the struggle three times, so convincingly that even the judge was privately persuaded of his innocence. More than twenty witnesses had told the jury about the victim’s ferocious temper and frequent threats against Lawrence. By the time that Marshall Hall came to make his final speech, a case that had seemed black and white was turning very murky – and it was to uncertainty itself that he now appealed. Standing with arms outstretched, he asked the jurors to imagine ‘a great statue of justice holding those two scales with equally honest hands’ and began methodically to go through the evidence for and against his client. First one side, and then the other, he told them – swaying all the while – might seem lower. It might be almost impossible to say which side was closer to the ground. And as the jurors watched, entranced, came the punchline.
Then in the one scale, in the prisoner’s scale, unseen by human eye, is placed that overbalancing weight, the weight of the presumption of innocence…it is your duty to remember the invisible weight of that invisible substance.
With those words, he let one arm drop with a thud to the bench. The jury acquitted after twenty minutes.
The journey from the Hall of Two Truths to the Old Bailey is a vast one. It crosses from the marbled courtrooms of Athens to the ordeal pits of Anglo-Saxon England, passing from the torture chambers of the Inquisition to the judicial theatres of Salem in the 1690s and Moscow in the 1930s. Justice and vengeance, secrecy and spectacle, and superstition and reason intertwine continually along the way, but this book’s trajectory is a straightforward one. At a time when governments appear increasingly unsure whether the criminal trial is a dispensable relic or a touchstone of liberty, it explores why the West came to regard the invisible doubt as a more reliable guide to justice than the feather of truth.
This book is concerned with only the Western legal tradition, and although it covers continental law in some detail in the first few chapters, its modern focus is on the Anglo-American jury trial and the war crimes trial. Any attempt to broaden its scope would have required either oversimplification or a work twice as long, and would probably have produced both. Whether the quality of Western justice is better or worse than that of the justice of other cultures is a question that I have happily ducked. The book’s subject is the brutality or nobility of the West’s institutions, and the extent to which those institutions have honoured or betrayed the ideals for which they claim to stand.
1 From Eden to Ordeals (#ulink_11114a15-870b-5f9c-b0d3-31c28af2bf66)
It is only our conception of time that makes us call the Last Judgment by that name; in fact it is a permanent court-martial.
FRANZ KAFKA, Aphorisms
One of the few things that humanity has agreed upon for most of history is that its laws descend directly from the gods. The oldest complete legal code yet discovered, inscribed onto a black cone by the Babylonians almost four thousand years ago, shows Shamash, god of the sun, enthroned and handing down his edicts to a reverential King Hammurabi. Jehovah reportedly did much the same thing a few centuries later, carving ten commandments onto two tablets with His own finger as Moses stood by on fiery Mount Sinai. Coincidentally or otherwise, it was said of Crete’s King Minos that he climbed Mount Olympus every nine years to receive legal advice from Zeus. Ancient cultures were equally certain that the power to adjudicate breaches of the law rested ultimately in the hands of the gods. The methods of enforcement were often as terrible as they were mysterious – ranging from bolts of lightning to visitations of boils – but the justice of the punishments was as unquestionable as the law that they honoured.
And yet, for all the insistence that heavenly laws were cast in stone and divine judgments unerring, one question always caused turmoil – namely to whom, down on earth, had the right to judge been delegated? The priests who veiled their various scrolls and statutes invariably argued that only they could interpret their secrets, backing up the claim with further revelations as and when required. Monarchs were no less assertive, and constantly sought to interfere with the religious mysteries of justice. Some even argued that the power lay elsewhere. Among the Hebrews, for example, an old tradition prescribed that homicides should be tried by common people, and although Judah’s priests established something close to a theocracy after 722 BC, their oldest myth of all characterized the ability to tell good from evil as every human being’s birthright. The story of the Fall was not, admittedly, a ringing endorsement of the power to judge – Adam and Eve had, after all, paid for their apple with sorrow, sweat, and death – but it was certainly a start.
The Athenians would produce a considerably more robust illustration of humanity’s inherent sense of justice: Aeschylus’ Oresteia, the oldest known courtroom drama in history. The trilogy, first performed in 458 BC, retells the ancient myth of Orestes, scion of the royal house of Atreus – a bloodline as polluted as any that has managed to perpetuate itself on this earth. The corruption had set in when its founding father Tantalus chose, for imponderably mythic reasons, to slaughter his son, boil the body, and serve it up as soup to the gods. Aggrieved Olympians condemned him to an eternity of tantalization, food and drink forever just out of reach, and resolved to visit folly, blindness and pride on his offspring for evermore. Family fortunes began a rapid decline, and by the time that Tantalus’ great-great-grandson Orestes reached adulthood, its history of rape, incest, cannibalism, and murder had generated a degree of domestic dysfunction that was pathological even by the standards of Greek mythology.
The play opens with news that Agamemnon, commander of the Greek armies and father of Orestes, has just triumphed at the Trojan Wars. But all is not well. Victory was purchased through the sacrifice of his own daughter, Iphigeneia, and he has abducted Cassandra, the beautiful child of Troy’s King Priam, to have as his concubine. His wife, Clytemnestra, has meanwhile taken a lover of her own and sworn to avenge Iphigeneia. When Agamemnon returns to the marital home, as oblivious to the obvious as every tragic protagonist should be, the tension mounts. Cassandra waits at the gates while he enters its portals – and the princess, cursed to know the future but powerless to change it, sees horror ahead. Hopping and screeching on the palace eaves are the Furies, supernatural guardians of cosmic propriety, and throbbing deep within are visions of anguish: torn wombs, a soil that streams blood, a bath swirling red…and Agamemnon, dead. ‘I know that odour,’ intones Cassandra, as she steps up to the threshold. ‘I smell the open grave.’ Screams engulf her, and the first act closes with Clytemnestra exulting over the bodies of her husband and his prize, a bloody knife in her right hand. Her work, she proclaims, is a masterpiece of justice.
It all leaves Orestes in a pickle. On the one hand, he loves his mother. On the other, he is honour-bound to slaughter her. Urged on by a crazed Chorus, he makes his way to the family palace, where he first cuts down her lover. He then forces Clytemnestra to gaze on the body. Pleading for her life, so desperate that she bares the breasts that once suckled him, she begs her son to accept that destiny played as much of a role in Agamemnon’s demise as her dagger. Orestes is torn between the claim of vengeance and the tie of affection, and the drama pivots on a moment of hesitation – before it tips. ‘This too,’ retorts Orestes, ‘destiny is handing you your death.’ He hurls his mother to the floor and makes her embrace her lover’s corpse, before running her through with his sword. The sated Chorus re-gathers to pronounce that the family’s misfortunes have come to an end. Resolution remains an act away, however, and Orestes has of course won no more than his turn to bear the ancestral curse. As it settles, stifling, on his shoulders, he sees the serpent-haired Furies swarming to take revenge and even the Chorus finally begins to waver. ‘Where will it end?’ its members wail, ‘where will it sink to sleep and rest, this murderous hate, this fury?’
Aeschylus’ answer comes in the final part of the trilogy. Shadowed by his mother’s supernatural avengers, Orestes seeks refuge at Apollo’s oracle at Delphi. Apollo, god of justice and healing, reassures him that he did the right thing, but advises him nevertheless to seek the protection of wise Pallas Athena. Orestes duly makes his way to her hilltop citadel on the Areopagus of Athens. The owl-eyed goddess is rather more equivocal. There are arguments both ways, she points out, and even she cannot resolve a conflict between right and right. Her solution is simple. She will summon ten Athenian citizens, bind them by oath, and make them decide.
The substance of the argument that ensues is less significant than its outcome – for although the jury splits evenly, Athena casts her vote for Orestes and is so impressed by her innovation that she prescribes its use in all future homicide cases. Athens, she pronounces, stands on the verge of unprecedented peace and tranquillity. Only the Furies remain unconvinced, hissing with repulsion at the thought of harmony, but even they are quieted by Athena’s assurance that they will have an honoured place in her new court. Their venom has been drawn – and the snake-headed hags, optimistically renamed the Kindly Ones, close the play at the head of a torchlit procession through their blessed city.
Aeschylus intended his work as a celebration of Athens in particular and human potential in general. When it was first performed in 458 BC, some two centuries after the scattered farms and fishing villages of the Attican peninsula had first begun to coalesce, the city was at its zenith. It had just seen off would-be invaders from Persia and transformed itself into a regional superpower, while political reforms were entrusting its male citizens with rights of participation and personal freedom never before seen in the ancient world. In a spirit epitomized by a famous assertion by a thinker called Protagoras that ‘man is the measure of all things’, its poets and philosophers were busily blazing trails that still dazzle more than two millennia later. Aeschylus’ brilliance manifested itself in a series of plays, and it was epitomized in the Oresteia. Whereas Homer had simply paid homage to Orestes as a righteous avenger, and Euripides would later resolve his anguish by having him acquitted before twelve gods, the playwright’s perspective was as radical as it was optimistic. Human honesty, he ventured, might be as sure a guide to the mysteries of justice as the most divine of oracles.
Straightforward though that message appears, it is easy to overrationalize it. Aeschylus’ faith was reflected by reality, in that legal reforms had just transferred the power to judge serious crimes from state officials to ordinary Athenian men, but the ritual that he revered was no fact-finding inquiry. There had been no uncertainty about what Orestes had done: he had deliberately murdered his mother, who had just done the same to his father. And just as the jurors were not convened to find facts, the defendant was not cleared because evidence proved his innocence: he was cleansed of guilt because they decided – by the barest of majorities, tipped by the casting vote of a goddess – that he was not blameworthy. Nor was vengeance removed from the process. Honouring the family by repaying wrongs done to it was still seen as part and parcel of the natural order, and any fifth-century Athenian would have regarded forgiveness as cowardly at best and accursed at worst. Aeschylus had made sure to give the Furies a dignified place in Pallas Athena’s court, and the clinching argument that the goddess used to secure their cooperation was a reminder that they had won the votes of half of the jurors. In his play, as in life, vengeance was being idealized and institutionalized, but it was certainly not being abolished.
Aeschylus’ stance reflected a tension between two ideas about justice that were always at odds with each other in the ancient world. One assumption, that people were at fault only if they had done evil deliberately, was almost as common in fifth-century Athens as it is today. However, there also existed another, more visceral, belief – that some deeds demanded punishment regardless of the perpetrator’s intention, if the rage of the gods was to be forestalled. The view was notoriously prevalent among the ancient Hebrews, who enumerated an entire catalogue of unforgivable abominations, from sodomy to sex with mothers-in-law,
(#litres_trial_promo) and used scapegoats and turtledoves to bear away the burden of countless lesser sins. In Greece itself, some three centuries before Aeschylus was born, the poems of a farmer called Hesiod had proposed that entire cities could suffer because of one man’s misdeeds. About three decades after the playwright died Sophocles would retell the notorious tragedy of King Oedipus, whose unwitting seduction and slaughter of his mother and father respectively brought shame and pestilence onto his realm. And fifth-century Athenians did not just write about such matters; they regularly visited suffering on a minority to cleanse the majority. An annual festival called the Ostracism allowed Athenian men to banish a fellow citizen by vote, and although they often did so for practical reasons, the ritual was widely seen as a way of ridding the body politic of contamination. Athens, like other Greek cities, also maintained a stock of human scapegoats known as the pharmakoi – comprising its poorest, lamest, and ugliest inhabitants – whose function was to be feasted and venerated at public expense, until famine or plague struck. They would then be dragged from their thrones and paraded about to the clatter of pans and the squeal of pipes, before being hounded out of the city gates under a hail of stones.
Trials themselves could operate to shift blame as well as discover it – as the Athenians also appreciated. Every midsummer up to the third century ad, they held a festival known as the bouphonia, at which an axe-wielding official would, after sacrificing an ox, discard his weapon and flee the scene. Someone would then flay the beast, and all present would eat the meat, re-stitch the hide, stuff the carcass with straw, and yoke it to a plough – at which point, a trial was convened to establish who, in the absence of the actual killer, was guilty of its death. Accusations were levelled first at the women who had brought the water to whet the blades. They would accuse the sharpeners. Those men, questioned in turn, would blame the people who had taken the axe and the knife from them to the slaughter. The messengers would accuse the carver, who laid one final charge. The true shame, he would argue, lay with his blade. And there the buck would stop. For when the knife damned itself by its silence, the axe was formally acquitted and the guilty weapon was hurled into the sea.
Although the modern mind tends to picture Greek courtrooms as sunbleached temples to debate and deliberation, a similar tension between reason and unreason characterized the rituals that were used to resolve actual crimes in fifth-century Athens. Freemen had gained the right to judge – which they would exercise not in groups of ten, but in assemblies of up to a thousand and one – but while they were building a fizzing, babbling democracy, seventy silent per cent of the adult population remained legal nonentities. Women were permitted to litigate only through guardians, while slaves could not even give evidence except under torture, on the strength of a theory that they were constitutionally incapable of telling the truth unless subjected to great pain.
Trials for homicide, a touchstone of the social order in any close-knit community, were not just affected by superstition but founded on it. It was commonly believed that killers exuded the miasma, a vapour so abhorrent to the gods that the slightest whiff could incite them to rage, so despicable that those around whom it clung were barred from temples, games, and marketplace – and so persistent that only a trial could dispel it. The origins of the miasma are as misty as those of any myth but its existence in fifth-century Athens was a firmly established sociological fact. Murder trials were held outdoors to minimize the risk of infection, and at least one defendant relied on its reality to prove his innocence, pointing out to his judges that he had recently sailed in a ship that had not sunk. Killers sometimes attended court to purge themselves even when there was no one to prosecute them – as might happen if the deceased was a legal cipher like a slave – and one Athenian tribunal, the prytaneion, was dedicated to nothing but the prosecution of killer beasts and murderous objects.
(#litres_trial_promo) Defendants who had been exiled for one murder but wanted to cleanse themselves of a second charge were tried in the most prudent court of all. It convened at a stretch of Athenian shoreline called the Phreatto where the accused addressed his judges from a boat, which bobbed offshore at a suitably circumspect distance.
The superstition played an important role in anchoring the criminal trial in Athenian society. It sharpened the only choice open to most defendants in the ancient world – whether to undergo a trial or enter exile – and at a time when predators human and bestial roamed the countryside, those accused had every reason to take their chances in court. It simultaneously made it more likely that accusers would prosecute, for the miasma was also thought to linger around anyone who failed to obtain vengeance. And as it became established that prosecutions were as valid a form of revenge as any other, the premium that was placed throughout the ancient world on life behind a city’s walls also generated its own moral basis for the exercise of judicial power. The law codes of Israel and Judah instructed municipal officials to grant sanctuary to killers only if they agreed to stand trial, and in Athens, where idealization of the city ran especially deep, it became established that judgments were binding, whether right or wrong. A willingness to take complaints to court and abide by judicial rulings became, literally, the civilized thing to do.
No ancient trial better illuminates the development than the most famous one of them all: the prosecution of Socrates, charged in 399 BC with having invented new spiritual beings and corrupted Athenian youth. The 70-year-old was a metropolitan fixture at the time of his prosecution: an ugly, acerbic and provocative philosopher who had spent decades haranguing hecklers and debating passers-by on the nature of the universe. Through a series of historical accidents, the accusations have entered popular history as the persecution of a sage, condemned by a city that could not bear to hear some harsh truths about itself. The assessment obscures considerably more than it illuminates.
It stems from the eyewitness reports of just two men – Socrates’ pupil, Plato, and an acquaintance called Xenophon – and neither is a reliable narrator. Plato produced the more comprehensive account, but the future philosophical colossus, then a mere prodigy of 28, omitted to record much of the crucially important political background to the case. Assumptions of style and relevance undoubtedly played some part in that, but so too did the fact that Plato idolized his teacher and was concerned throughout to portray him in the purest light. One effect has been to consolidate an enduring popular myth that the charges were more irrational than they were. Another has been to blur one of the most important aspects of the trial. Plato’s account leaves no doubt that the prosecution pitted the community against the individual, but its outcome illustrated how Socrates was bound to Athens as much as it showed his ability to stand up against it.
The Athens that put Socrates on trial was a shadow of the city that Aeschylus had glorified half a century before. Three decades of war with Sparta, its militaristic rival, had recently come to an end. The Spartans had vanquished the Athenian navy and then reduced the city’s starving population to unconditional surrender before destroying its fleet and demolishing its walls. The physical collapse was rapidly followed by political disintegration. A despotically inclined citizen called Critias had established a collaborationist oligarchy known as the Thirty, and for eight months Athens became a police state, terrorized by bands of dagger- and whip-wielding thugs who daily murdered opponents of the new dispensation. Around fifteen hundred people were summarily executed – almost as many as had died over the previous ten years of war – before the terror came to an end in 403 BC. The restored democracy declared an amnesty for political offences in the interests of peace – but plenty of Athenians remained eager to settle accounts.
Socrates was among those who paid, heavily, but he was not chosen at random. No one has ever been entirely sure what ideas he expounded, because he wrote nothing and owes his philosophical footprint to Plato; but among the tenets later attributed to him were a number that chimed neatly with those of the oligarchs. They included a belief that wise individuals could gain insights into absolute truths – a claim that was well suited to those who subscribed to the ‘rule of the best’, or aristokratia, and who pointed out that democracy could guarantee neither wisdom nor justice. It is also known that Socrates was not only an indirect inspiration to the enemies of democracy. He had taught several men closely associated with the Thirty – one of whom was none other than Plato, connected to the aristocrats by a web of social and family connections. Another was a second cousin to Plato – Critias himself. As if that did not make the old man suspect enough, he was widely known to admire Sparta, a fact so notorious that the playwright Aristophanes had mocked him for it throughout his comedy, The Clouds.
None of the smears had much substance. Whatever Critias may have taken away from his lessons with Socrates, the older man remained sufficiently independent to disobey an order to arrest an innocent man during Critias’ time in power. The single-mindedness of Spartan society certainly appealed to the philosopher in Socrates, very likely because he saw in its rigour a triumph of the human will. The totalitarian shadow of such beliefs is now apparent, but it could not have been to Socrates, and his admiration for Sparta seems to have resembled the rose-tinted feelings that some twentieth-century intellectuals once harboured towards the Soviet Union – symptomatic of idealistic impatience rather than venomous treachery. His ideological flirtations did not, in any event, stop him serving Athens loyally during the war, both as a civic officer and as a soldier.
There is little doubt, however, that the capital charges against Socrates, though framed in moral and religious terms to get round the amnesty for political offences, were effectively ones of treason. Although Plato chose not to record the speeches of the three accusers, the allegation was that he had lent aid and comfort to Athens’ enemies at a time of war.
Plato’s account of Socrates’ trial portrays the older man as a model of integrity, as determined to expose the weaknesses of the case against him as he was resolute not to save himself through flattery. In his record, the snowy-curled philosopher, standing before 501 fellow citizens, began with the traditionally disingenuous plea of the seasoned orator – an apology for his inarticulacy – before launching into a speech that honoured nothing but the truth. He opened by telling his listeners that the oracle of Apollo at Delphi – the source of wisdom visited by, among others, Orestes in the Oresteia – had identified him as the wisest person alive. Although initially puzzled, he had come to realize why – for he more than anyone else appreciated the limits of his own knowledge. The charges against him were however nonsense. They accused him of teaching young people to believe in new gods, and he had never done that. It was true that a spirit whispered in his ear, but it was a travesty to call that spirit a god. Its voice simply told him to speak plainly and ask awkward questions, and although such behaviour had made him unpopular, he would not stop even if acquitted. He was like a horsefly on the lazy beast of Athens. His judges would spare him if they were sensible, but he suspected that they would sleepily swat him down instead.
Despite the uncertainty over what Socrates taught, it has always been known how he taught it – essentially by prodding his listeners to conclusions that theoretically represented truths that they already knew – and there can be no better demonstration of the technique than the performance recorded by Plato. Some people find the speech moving, while others consider it the preaching of a prig; but whatever the best way to characterize Socrates’ defiance (and Xenophon claims that he simply wanted to die) it won him few friends. He inspired such hostility that he had to ask for silence several times, and although shouting, clapping and booing were common at Athenian trials, when the judges voted, by dropping pebbles into earthenware jars, about 280 of the 501 were for conviction.
Athenian law required that Socrates propose his own sentence, but his response to conviction was to become even less conciliatory. Xenophon recorded that he refused to suggest anything. Plato has him telling the judges that what he most deserved was maintenance at state expense for the rest of his life, dismissing exile with the explanation that the judges were too likely to impose it if he proposed it, and finally condescending to pay a derisory fine. The old man’s supporters swiftly multiplied his offer thirtyfold, but the damage was done. When the ballots were counted, at least eighty of those who had supported his acquittal were now voting for his death. Still Socrates remained undaunted. He would not weep or wail to save himself. He looked forward to meeting the immortals. ‘Now it is time that we were going, I to die and you to live,’ he concluded. ‘Which of us has the happier prospect is unknown to anyone but God.’
Plato’s record, for all its bias, must be largely accurate – not least because his contemporaries would otherwise have written spirited corrections – but Socrates was not condemned simply because he was too honest to deny his genius. The city had just imploded after the most bitter war in its history, eviscerated by a Sparta that he idealized, and those judging him would almost all have been touched by the brutality of the Thirty. When he claimed exalted insights and spoke of a spirit that whispered into his ear, they would have recalled that his wisdom had been taught to traitors. To many of those who heard him, he was neither a harmless crank, nor a seeker after truth. He was an accessory to mass murder.
But the conflict between Socrates and the state would have an unexpected ending. After spending a month in his condemned cell, considerably more jolly than his morose acolytes, he was visited by a pupil called Crito who told him that an escape had been organized. Socrates, however, refused to countenance the idea. He had voluntarily attended his trial instead of exiling himself, he reminded his old friend, and he invited him to contemplate what the laws of Athens would think about the proposal if they were able to speak. As far as Socrates was concerned, they would be horrified. ‘Do you imagine that a city can continue to exist and not be turned upside down,’ they would ask, ‘if the legal judgments which are pronounced in it have no force but are nullified and destroyed by private persons?’ Socrates owed it to the city to stay. It was only through its laws that his parents had been able to marry each other and that he and his children had received their education. He had no more right to undermine an Athenian law that was being wrongly enforced than he would have had to retaliate against his father or his employer.
The willingness to yield to judgment after so steadfast a defence was remarkable enough, but Socrates would now bow even lower. For he did not simply submit to punishment – he carried it out. Athenian law allowed some capital offenders to purchase poison from the state, and Socrates did so. Plato records that he drained his glass in one gulp while disciples wept uncontrollably, and took his leave of life by asking Crito to sacrifice a cock to the god of healing. The pain was over. ‘Such…was the end of our comrade,’ observed Plato, ‘the bravest…wisest and most upright man [of our time].’
As such remarks incessantly remind the reader, Plato was writing in large part to tell Athenians that their verdict had been an awful mistake, but the significance of his account can hardly be overstated. The arguments that he put into Socrates’ mouth, idealizing the law while condemning those who misapplied it, would reverberate down the centuries. They would give birth to the notion that rules can be trusted even when humans cannot, inspiring ideals like the rule of law and the notion that some rights are inalienable. They would have a darker side, underpinning the authoritarian vision of a state that knows best and civil liberties that are always contingent. The record also showed, for the first time, how trials can enforce judgment by turning defendants against themselves. It was a development that would be seen time and again, whenever communal values and political institutions grew sufficiently strong to harness the force of the individual conscience. Its significance was summarized by Sigmund Freud in an image that bears repetition, even if the psychoanalytical theories underlying it might not. ‘Civilization,’ he wrote, ‘obtains mastery over the individual’s dangerous desire for aggression by weakening and disarming it and by setting up an agency within him to watch over it, like a garrison in a conquered city.’
The conventional bridge from Athens to the modern world is the civilization that conquered Greece in 200 BC – Rome. By then, the Republic had a legal culture that was already some three centuries old and its jurists were on the way to developing complex rules of contractual and property law, but its notions of criminal justice would never become quite as sophisticated. Spectacular treason and conspiracy trials would punctuate Roman history, but they were as political as they were principled: an opportunity for ambitious Romans to rally their supporters, display their power or publicly turn the tables on their rivals through a successful prosecution or defence. As in Athens, citizens facing a capital charge had the choice of departure or submission – required either to exile themselves, or attend court unwashed, unshaven, and in shabby mourning dress – but such ritualism rarely stretched to soldiers and never touched the cases of slaves. Roman law had originated in priestly mysteries just as holy as those of any other culture, but justice in the empire was a tool rather than an ideal, wielded by magistrates whose role was to police an empire rather than to honour a tradition.
The most distinctive feature of Roman penal laws was, unsuprisingly, not the trials they mandated but the punishments they prescribed. Prisoners of war and those convicted of murder, arson, or sacrilege might be executed at the arena – burned alive as a warm-up act, or offered as fodder to hungry beasts while the gladiators took a breather. The most notorious prosecution in Roman history is accordingly remembered not for the perfunctory ritual of condemnation but for the horrors that were reportedly inflicted subsequently: whether Jesus was convicted by the Sanhedrin or Pontius Pilate pales into insignificance against his scourging, whipping, and crucifixion. Other penalties made his fate look almost mild. A debtor, after sixty days in prison, was punishable by execution or enslavement at the election of his creditor – and if the insolvent owed money to more than one person, the plaintiffs could adjust their losses (among other things) by collectively tearing him apart limb from limb. Most rococo of all was the punishment imposed on those who killed a parent. The parricide was beaten with rods until blood was drawn, and then drowned in a sack with a dog, cock, monkey and snake, or some writhing permutation thereof.
The allure of Rome was such that Europe’s lawyers would never stop asserting a Latin pedigree for their own legal theories, but a historical firebreak divides the classical and medieval worlds and the claims would very often be wishful ones. Rome’s criminal laws in particular would reach modern Europe only in a highly warped form. There was one aspect of its criminal justice system, however, that was destined to have a lasting and widespread impact, in the field of criminal law as much as any other. The Romans, consummate intriguers that they were, had become fascinated by the Greek art of persuasion, and in the first century BC a defence lawyer called Marcus Tullius Cicero restated the rules of rhetoric in a form that has survived to the present day.
Some of Cicero’s theories were very specific to his time and place. He advised, for example, that anger was best expressed with high-pitched staccato phrases and that speeches should always be made with the right hand extended like a weapon. Energetic passages, he felt, ought to be both introduced and concluded with a vigorous stamp of the feet. But he also possessed a cynicism that was timeless. Advocacy, he claimed, was about advancing ‘points which look like the truth, even if they do not correspond with it exactly’, and he was said to have boasted twice of winning acquittals by throwing dust into his judges’ eyes. His own life encapsulated the mixture of brutality, efficiency, and superstition that characterized Roman criminal law – and never more so than when he took leave of it. He was one of the first people to theorize that laws presupposed the right to a trial, but he personally arranged for several summary executions in 63 BC, and he himself was assassinated twenty years later on the orders of Mark Antony, then one of Rome’s ruling triumvirate. The posthumous treatment of the 63-year-old was eloquent comment on the judicial system that he had come to personify. The rostrum of the Roman Forum, from which he had won so many hearts and minds, was adorned with his severed head and hands. Mark Antony’s wife is said to have taken an even more symbolic revenge. Cicero had recently attacked her in several vitriolic speeches, and according to one Roman historian, she now inflicted the most poetic injustice of all, driving a hairpin through the great orator’s tongue.
Rome formally adopted Christianity as its state religion during the fourth century AD. The Holy Roman Empire would loom large in Europe’s history over the next millennium, inspiring countless wars between popes and princes who sought to cloak themselves in its pseudo-legitimacy, but Roman culture itself would collapse long before the nations of medieval Europe began to emerge. In the middle of the fifth century, waves of invaders thundered out of central Asia and set off a chain reaction of hostilities that soon robbed the Empire of its heart, as barbarian incursions caused the imperial capital to relocate to Constantinople. In the late 520s, Emperor Justinian had his lawyers produce the Digest, a codification of virtually every Roman edict and legal theory ever penned, but his honouring of one tradition was accompanied by the evisceration of another. He simultaneously closed Europe’s last institutional link to ancient Greek philosophy, the Athenian Academy that Plato had established to perpetuate the teachings of Socrates some nine centuries before. A curtain was falling on the ancient world.
Scientists have recently postulated that the impact of a comet or a volcanic eruption set off catastrophic climatic cooling during the mid 530s and, whether or not they are correct, the decade marked the beginning of four centuries of unprecedented gloom. The Black Death reached Europe for the first time, spreading like an inkblot from its southeast corner, and more marauders were soon storming in from the steppes. By the middle of the next century, an entirely new horde was sweeping out of Arabia behind the standards of Islam, conquering, converting, or killing all in its path. Europe’s Vandals, Franks, Goths, and Celts were meanwhile stampeding about like beasts in a forest fire, fleeing disaster one year only to shove their neighbours towards it the next. It was the beginning of the era that the peoples of western and southern Europe would come to call the Dark Ages. As monasteries were abandoned and monks forgot how to read, Christendom dropped the baton of learning that had been passed around the Mediterranean for a millennium. By the time it recovered its wits five centuries later – thanks in large part to translated texts and fresh commentaries preserved by Arab and Persian scholars – Greece would be barely a memory, and Rome’s traditions would have been bastardized almost beyond recognition.
