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

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Two peoples would clamber towards the top of the heap. The first were the Germans, a cluster of tribes originating somewhere in Asia, who ousted the Celts from a vast chunk of central Europe. While some established the settlements that would eventually coalesce into Germany, others, known as the Franks, settled west of the Rhine in the region known as Gaul. The second group – the Scandinavians – would arguably have an even greater reach. A contingent of Danes invaded Britain during the mid fifth century, accompanied by two north German tribes known as the Angles and the Saxons, and a later wave of emigrants travelled considerably further during the 700s. In search of a little living room, the Norsemen got as far as America and North Africa, established permanent colonies in Greenland, Iceland, and Russia, and caused so much havoc among their erstwhile cousins in England that the country had to be partitioned in the late 800s. (They would only stop sticking their oars into the island’s politics in 1016, when Denmark’s King Canute brought the interference to a neat conclusion by taking over entirely.) Viking raids in Gaul led to a compromise no less significant when, in 911, King Charles the Simple persuaded a red-headed raider called Rollo to swear allegiance in return for control over a large region near Rouen. Rollo reportedly displayed little fealty to the Frankish monarch, delegating the job of kissing Charles’s foot to a flunky who upended the royal leg. His hairy warriors would, however, become some of the truest sons of feudalism – for as they swapped their longboats for horses, Gaul became France and the Norsemen became the Normans.

The barbarians, whose customs incorporated ingredients from as far afield as Mongolia and India, transformed Europe’s notions of justice just as dramatically as they affected every other aspect of continental culture. Although the Romans’ concepts of contractual and property law lived on, their pragmatic techniques of dealing with crime expired or mutated as semi-rational inquiries gave way to rituals that relied squarely on the gods. For whereas the deities of Rome and Greece were never called upon to adjudicate actual trials, few areas of human endeavour seemed to fascinate those of the barbarians more. Celtic Druids caged troublemakers in mammoth wicker effigies that were periodically set ablaze to propitiate their gods. German priests enjoyed a similar monopoly over judgment and dispensed punishments that were regarded as offerings to the god of war. Scandinavian religion produced one of the most bloodthirsty ceremonies of all. In honour of Odin, criminals were strangled from long wooden beams and stabbed repeatedly while they died. Odin’s time was running out, but the ritual that honoured him was destined to last – for the Norse gálgatré would come to be known as the gallows tree.

The appeal of vengeance was even stronger among the barbarians than it had been for the Athenians. Few activities were quite as satisfying to German and Scandinavian warriors as the thrill of hunting down and annihilating a kinsman’s killer and they did not even theoretically leave the job to the gods. Whereas the Furies of Greece had stood ready to wreak vengeance if a kinsman failed to do so, the closest barbarian equivalent were the German Valkyries, and they were responsible only for hovering over battlefields and transporting fallen warriors to Valhalla. The shame of cowardice and the spur of a fame to outlast death were enough to make the barbarians settle scores themselves.

The eagerness for revenge finds expression in all the great literature of the era. The epic poem of Beowulf, written in the tenth century and composed up to three hundred years earlier, was concerned throughout with justice, and it was owed as much to the dead as to the living. On occasion, the dead even had the prior claim. When King Hrethel’s eldest son was accidentally killed by a younger one, the monarch was plunged into despair – not only because his firstborn had died, but also because kinship rules forbade him from killing the survivor.

No less vivid is the Norse myth of Balder the Beautiful. Balder, the god of light, was so beloved that when he dreamed of death, his mother Freya was able to persuade almost every single object on earth not to hurt him. She failed to ask only the mistletoe, a plant so young and feeble that it seemed entirely harmless. The omission would, needless to say, have consequences. As news spread around Asgard that Balder was invulnerable, his fellow gods began playfully to pelt him with battleaxes, clubs, and spears. Only two stood on the sidelines: Loki, god of mischief, and Hodur, the blind, dim twin of brilliant Balder. Loki, unremitting prankster that he was, had made it his business to learn mistletoe’s secret, and he asked Hodur why he was not joining in the fun. Hodur explained sadly that he had no missiles, and wouldn’t know where to throw them even if he did. Loki offered to assist. He happened in fact to have a bow and a mistletoe dart. And thus it was that while Balder was joyfully bouncing off hardware from every other direction, Loki guided Hodur’s aim and a whirring arrow skewered like a stiletto through Balder’s beautiful forehead. The god teetered and toppled, and had barely hit the ground before a fellow deity called Wali had sworn neither to comb his hair nor wash his hands until he had sent the guilty party to the underworld. But it was not Loki whom he had in mind. His first concern was with the killer himself – and it was hapless Hodur who was hunted down and despatched to the shadowlands of Hel.

Christianity made steady headway through the new peoples, but the potency of such traditions was such that it was converted almost as much as the pagans were. The idea that the morality of a deed depended on the doer’s state of mind, though seen throughout the Bible and common among the Athenians and Romans, steadily gave way to a sense that acts were good or evil, regardless of intention. Christianized rulers often enacted laws based on the Bible but, keenly aware of the fragility of their authority, generally did very little to enforce them.

Laws were not, however, abandoned. Although rulers could not make their subjects be good, they began to establish some control over their feuds and squabbles by fixing guidelines for compensation, and asserting that complainants could resort to violence only as a last resort. The tariffs varied depending on the seriousness of the offence. The laws of the Salian Franks, written down towards the end of the fifth century AD, required three shillings from those who defamed someone by calling them a fox or a hare. Abducting a virgin in Kent a century later entitled her owner to fifty shillings. Among the Frisians of the late eighth century, the value of a life ranged from cost price, for a slave, to eighty shillings for a nobleman.

Such codes hardly made for the rule of law, but each reflected the development that Aeschylus had once idealized in the Oresteia: the attempt to formulate collective justice as an honourable substitute for private revenge. The same process seems to occur whenever a community becomes sufficiently self-aware to recognize that it has disputes to resolve. Cultures around the world have used countless different methods to contain the violence. Among the Inuit of Greenland, disputants once abused each other in song and proved the superiority of their claims through feats of great athleticism. The Tiv of Nigeria chanted insults at their opponents, and tied them to trees. Massa clans in Cameroon–Chad used to thrash out their differences by fighting huge battles with very small twigs. And the proto-litigants of medieval Europe relied on a very particular technique of their own – the oath.

The oath has probably been guaranteeing truth for as long as humanity has been able to envisage a power more vengeful than itself, and the promise to the divinity concerned has always been a terrible one. Accuser and accused in an Athenian murder trial would swear on their children’s heads while standing atop the entrails of a boar, a ram, and a bull. One method of renewing the Covenant among the ancient Hebrews involved walking between the two halves of a bisected calf. Medieval Christendom used tokens of mortality no less fearsome, typically the body parts of saints, and oaths formed the basis for its earliest trials – ceremonies known as compurgation, at which defendants proved their innocence by gathering together people willing to swear to their cause.

The ritual was enshrined in writing in the very first barbarian law codes, and by the seventh and eighth centuries it was being practised across Europe. Under open skies, each member of the team – known collectively as compurgators, conjurors, or jurors – would swear upon a shard of holy shinbone, say, that the defendant had not committed the alleged crime. The number of witnesses required depended on factors that ranged from the status of the suspect to the nature of the offence. Queen Uta of Germany, accused of adultery in 899, was acquitted only after eighty-two knights stepped forward to confirm her chastity. It would have taken six hundred people to acquit an accused poisoner in Dark Age Wales. On the other hand, those lucky enough to be deaf, dumb, aristocratic or pregnant were often accorded special privileges, and anyone accused of crime in seventh- and eighth-century Spain was downright lucky. Suspects who swore to the baselessness of charges laid against them were not only absolved of guilt, but also awarded compensation at the expense of their accusers.

Such proceedings, though reliant on witnesses, were not inquiries. The oath, far from ensuring the reliability of evidence, was the evidence; and jurors swore to their support of a defendant rather than to what they knew of a case. One consequence was that they were liable in some places to punishment for perjury if they got it wrong. Another was that any formal defect in the ceremony allowed people to lie with impunity. Swearing falsely on a saint’s relics was ordinarily a one-way ticket to hell, but if the reliquary was empty – because, for example, the testifier had secretly removed its contents – a person could swear that black was white with no ill effects at all. Similarly, it was a grievous sin to speak falsely to a priest while holding a consecrated cross, but fine to clutch the crucifix and lie blind if the only people present were non-clerical. In medieval Europe, breaking a promise was of little consequence. The fault lay in doing so after God had been asked to watch.

At the end of the first millennium AD, attitudes towards criminal justice in Europe therefore stood at a cusp. Religious and secular authorities were trying to encourage individuals to give courts a chance before taking matters into their own hands, but the belief in vengeance remained alive and well. The passions of the feud were being accommodated rather than ignored, and they were always liable to spill over beyond the institutions designed to contain them. No tale better captures the frailty – and peculiarity – of the attempts to tame gang warfare with the oath than the Icelandic Saga of Burnt Njal.

The story was written almost three centuries after the island’s conversion to Christianity in AD 1000, but it depicts a land rumbling to rhythms far older: a volcanic place of trolls and sprites, where the earth would more likely shrug its shoulders than a man would turn the other cheek. Feuds erupt and cool throughout the fifty years spanned by the work, but the narrative hinges at a point when men loyal to a chieftain called Flosi burn the eponymous Njal to death in his farmhouse. Njal and his wife steadfastly await the flames from the discomfort of their bed and his immediate family chooses to perish alongside him, but one relative determines to escape. Nephew Kari Solmundarson clambers to the rafters and, treading timbers that are sweating smoke, reaches the edge of the building. Seconds after he leaps from the roof, his hair and clothes ablaze, it crashes to the ground. After dousing his sorrows in a nearby stream, he embarks on the mission that will make his name a byword for good fortune throughout Iceland. In agony though he is, disfigured though he is, and bereaved though he is, Kari is also very, very lucky. He has survived to seek revenge.

Outrage mounts as he moves from kinsman to kinsman with news of Flosi’s crime. Thorhall Asgrimsson, a foster son to Njal, is so apoplectic that blood spurts from his ears and he collapses to the ground – a moment of weakness for which he expresses great shame – but he will prove a stalwart ally. For Thorhall Asgrimsson possesses a quality that is hardly less magical than good luck: knowledge of the law. And Njal’s friends and kinsmen agree that it is time to exact an awful revenge. They will take the killers to court.

On being given notice of suit, Flosi ponders whether to settle the case, but is persuaded by a fellow arsonist that, having shown such defiance, it would not be proper to back down. He decides instead to engage a lawyer. After ruling out one candidate, a warrior’s kinsman, on the basis that whoever takes the job is likely to die, Flosi approaches Eyjolf Bolverksson, one of Iceland’s most formidable pleaders. Eyjolf, resplendent in scarlet cloak, gold headband, and silver axe, initially refuses to have anything to do with the case. He is no cats-paw, he declares, ready to meddle in a dispute that has nothing to do with him. Flosi, confronted with a lawyer who speaks of integrity, knows just what to do. He dangles a chunky gold chain from his arm, and Eyjolf rapidly reconsiders. ‘It is only proper for me to accept this bracelet in the face of such courtesy,’ he purrs. ‘And you can fairly expect that I shall take over the defence and do everything that may be required.’ It was a bad move. Icelanders, like virtually every people before and since, had contempt for anyone so dishonourable as to require money to plead for someone’s rights. Eyjolf’s fictional fate was sealed.

The trial takes place on one of Iceland’s endless summer days at the Law Rock, a lava cliff overlooking a large valley and a silver river snaking far below. From across the island, jurors, chieftains, and onlookers converge around the booths that contain the legal teams. All the lawyers are, as is traditional, armed to the teeth and in full battle regalia. On the Rock itself stands Skapti Thoroddsson, the omniscient Law Speaker, who bears the awesome responsibility of memorizing the law and publicly reciting a third of its provisions every year. Kari’s nine jurors are sat on the riverbank, their job not to assess evidence but to swear that procedural steps have been performed correctly. A hush descends, and lawyer Mord Valgardsson steps up to the Rock. In words that echo around the valley, he swears that he will plead according to truth, fairness and law. He calls witnesses to testify that he has been duly appointed and has given the defendants notice of the action. He declares that he has brought nine sworn men to the Law Rock. And do the defendants, he demands, have any objections?

All those watching agree that the performance is a confident one – but Eyjolf Bolverksson, sporting his scarlet cloak and silver axe, then delivers a response that threatens to cripple Mord. Two of the jurors, he contends, should be disqualified because they are related to him. The lawyer, previously so eloquent, is reduced to silence. Consternation spreads across the Rock. The prosecution has barely begun, but seems already to be in ruins.

Only one man can save the day. Thorhall Asgrimsson, bedridden by a monstrous leg inflammation, has been left at home – so upset not to be present that he had waved off his kinsmen with a face as red as beetroot and tears tumbling like hailstones – but his moment of glory has come. Messengers run to the great jurist’s cot with news of the crisis and Thorhall, amused at Bolverksson’s audacity, explains what to do. The advice is relayed to Mord, who swiftly resumes his place. The fact that two of the jurors are his kinsmen does not disqualify them, he retorts. Only kinship with the accuser himself would have that effect. It is, by general consensus, a brilliant rejoinder. Thorhall Asgrimsson, from his sickbed, has saved the day.

A chastened Eyjolf admits that he had not anticipated so unerring a counterstroke, but promptly pulls another arrow from his quiver. Two of the jurors, he declares, are ineligible to swear because they do not own a house. As the jurors rise uncertainly, another wave of anticipation ripples through the spectators. The challenge sounds even more excellent than the first – but the messengers who relay it to Thorhall soon return with more advice. Mord strides to the riverbank, his confidence returning like the tide, and invites both men to resume their seats. The objection is nonsense, he booms. A juror need not own a house. It is enough if he possesses a milk cow. Amidst tumultuous excitement, the point is once again referred for adjudication to Skapti Thoroddsson. The crowds wait in an atmosphere so tense it could be split with a battleaxe, until the Law Speaker emerges from his booth to announce his ruling. The prosecution is right. It is enough to own a milk cow.

Eyjolf finally lets fly with a plea that many think the most powerful of all. Four of the jurors must stand down, he contends, because there are other men who live closer to the scene of the crime. The point is, Thorhall accepts, a superb one. But not so superb as to be unanswerable. Told what to say, Mord steps forward once again. The four jurors are indeed disqualified, he concedes – but a majority verdict will suffice, and five of the original nine jurors remain. For long minutes, the Law Speaker silently ponders the claim. And then he rules. The point is good – so good, indeed, that he is astonished. Until that moment, he had believed that he was the only man alive who knew it to be the law.

The time has come for Eyjolf Bolverksson to advance Flosi’s defence. The case has, he briskly declares, been brought before the wrong division of the Law Rock. He is right, but a new action is swiftly lodged in the correct court and, as the pace of the case accelerates, the arguments become personal. Kari’s side has learned about the bracelet that Eyjolf accepted to argue the case, and they now accuse Flosi of bribery and Eyjolf with procedural incorrectness – each a grave offence punishable with outlawry and confiscation. But just as it seems that Kari’s team has landed a knockout blow, Mord Valgardsson makes a fatal blunder. Rather than await Thorhall’s advice, he impatiently demands that six judges in the new court stand down and that the others award him a verdict. For ineffably complex reasons of Icelandic jurisprudence, he should have asked for twelve judges to be removed instead. The mistake is a serious one. Far from outlawing Flosi’s posse, he has paved the way for Njal’s own kinsmen to be exiled.

A messenger takes the news to Thorhall who, saying not a word, heaves his lame leg from his bed, grasps his spear with both hands, and gouges the abscess from his thigh. Oblivious to a stream of blood and pus that pours from the wound, he strides to the Law Rock. The first man he encounters is Grim the Red, a member of Flosi’s legal team. Thorhall, great jurist though he is, has tired of pleadings and with a single thrust of his spear, he splits Grim’s shoulder blades into two. Several of Thorhall’s kinsmen are stricken with shame. That a sick man should be so brave as to murder his enemies while they stand aside disgraces them all.

The next several pages of the saga describe, with great delight, the mayhem that now ensues. Across the Law Rock weapons fly, bones crack, body parts are pierced, and at least one bystander is hurled headlong into his boiling cauldron. When the Law Speaker suggests to Snorri the Priest that they negotiate a cease-fire, he is speared through both calves and Snorri throws his monks into the fray. Lucky Kari himself, zipping through the mêlée like a wasp among bees, parries, pirouettes and slays with sublime assurance, even managing at one point to catch a spear in midflight and return it quivering into the body of its owner. The casualties mount until Flosi’s dishonourable lawyer is spotted by one of Kari’s companions. ‘There is Eyjolf Bolverksson,’ he roars. ‘Reward him for that bracelet.’ Snatching a spear from a friend, Kari does just that – and the blade that hurtles clean through the renowned pleader’s waist finally resolves the crisis. Each side withdraws in order to treat its injured and bury its dead, and those men still standing return to the Law Rock the following morning. ‘There have been harsh happenings here, in loss of life and lawsuits,’ observes one of Flosi’s team. The time has finally come to bury the hatchet, before matters get out of hand.

The trial is not typical of its era, in that defendants rather than prosecutors were usually the ones required to produce co-swearers, but the Saga of Burnt Njal is based on actual events and accurately depicts the hazards of litigation in late medieval Europe. Formalities were an entrenched aspect of legal procedure everywhere – so much so that a word out of place could cost the speaker a fine, the case or his life, until well into the fourteenth century. Across northern Europe it remained customary to attend one’s case fully armed until at least the late tenth century, each side ideally signalling compromise by clashing together weapons and shields (a ritual known as the weapon-touch or wapentake), and Icelandic trials remained fraught with danger for considerably longer. Violence escalated well into the 1200s, with clubs giving way to small arsenals, until the country’s bishops were finally able to persuade enough litigants to leave their weapons at home for peace to take hold.

Compurgation, rough and ready though it was, was never entirely senseless. It could show a divided community where the balance of power lay. At a time when it was common knowledge that perjurers were liable to be frozen rigid, flipped backwards or reduced to dwarfish proportions,

(#litres_trial_promo) it also encouraged honesty – even if confusion over whether witnesses were swearing to knowledge or belief meant that honesty was never a reliable guide to accuracy. But even in the depths of the Dark Ages, there were sufficient objections to the system that another form of trial process became pre-eminent. As might be expected of an irrational age, the alternative tapped even more deeply into the supernatural. Once a sufficiently large number of people had sworn to someone’s guilt, he or she might be subjected to an ordeal, typically using fire or water, at which God was invited to rescue the innocent by way of a miracle. If He did so, the person making the accusation would be punished. If He declined the opportunity, it was the accused who stood condemned – to banishment or death.

The procedures, unknown in the Bible,

(#litres_trial_promo) probably rested on traditions of elemental worship that the Germans picked up directly or indirectly from India, but the Catholic Church took to them with gusto. As early as the sixth century, a distinguished bishop called Gregory of Tours was informing Christendom that trial by boiling water could be used to disclose God’s will. He told how a Catholic deacon and a heretical priest had agreed to settle their doctrinal differences by plucking a ring from a boiling cauldron, and how, moments before the test was due to begin, the Catholic was found to have smeared a magic balm onto his arm. As the honour of the True Church had teetered in the balance, a stranger from Ravenna had stepped from the crowd and plunged his own arm into the seething waters. The newcomer, whose name was Hyacinth, took some time – reportedly telling bystanders as he groped around that the water was a little chilly towards the bottom and pleasantly warm at the top – but within an hour he had the ring safely in his grasp. His rival then tried his luck, but had the flesh boiled off the bones up to his elbow. ‘And so’, Gregory gravely noted, ‘the dispute ended.’

By the ninth century, a similar ceremony was being used to resolve serious accusations in churches across Europe. While a fire burned in the vestibule, mass would be celebrated and the priest, clutching a Bible, would lead a line of cross-bearing and censer-swinging clerics towards the kettle. To the sound of psalms and the scent of myrrh, the water would then be blessed in the name of the Trinity, Resurrection, and Armageddon, and God would be implored to illuminate that which had been secret. Onlookers would meanwhile pray for the accused’s vindication or destruction according to taste, and he or she would then try to remove a stone from the bubbling waters. The resulting wound would be bandaged and three days later, the priest would remove the dressing and interpret the blister. If he declared it healed, all well and good. But if he pronounced it festering, guilt would be established, and exile or execution would be added to the woes of the accused.

The ordeal of fire switched elements but otherwise followed much the same pattern, requiring defendants to test their flesh against flame and then spend three days praying for a miracle, a merciful priest, or a combination of the two. Glowing iron bars were usually used, but during the eleventh century the mother of Edward the Confessor, Emma of Normandy, was reportedly made to walk barefoot over nine red-hot ploughshares in order to meet charges of an adulterous relationship with the Bishop of Winchester. (If Church chroniclers are to be believed, which of course they are not, she was so manifestly innocent that she had already strolled obliviously across the sizzling blades by the time she asked to begin.) A crusading peasant called Peter Bartholomew underwent an even more spectacular form of trial by fire in 1098. While wandering through the rubble of a ruined church in Syria, he identified an iron pole as the lance with which Jesus had been pierced on the cross. Although similar assertions would put countless others on the fast track to canonization, a faction of fellow soldiers alleged, for reasons unknown, that he was lying. If not, they contended, he would make good his claim by passing through two lines of blazing olive branches. He apparently jumped at the chance to prove his piety, pole in hand, but the story then becomes a little murky. According to Raymond of Agiles, a fierce supporter of Peter’s bona fides, he ambled between walls of flame that were a foot apart and forty feet high, pausing briefly only to converse with the Lord inside the inferno, before emerging unscathed – at which point a mob of admirers excitedly broke his spine. A second account was considerably more sceptical. A third condemned Peter as an out-and-out fraud. Charity, if nothing else, makes it more pleasant to accept Raymond’s recollection, but since even he noted that Peter died twelve days later (‘on the hour set by God’), it probably makes little difference either way.

Several other techniques were used to attract God’s attention. The ordeal of cold water involved immersing bound suspects in exorcized streams or wells, where priests would prod them with poles to see whether they sank or swam. On the strength of a theory that water was so pure that it repelled sin, anyone who floated was convicted; those who sank convincingly enough were vindicated and, with luck, resuscitated. Another type of ordeal, said to be especially popular among the Anglo-Saxons, was the trial by morsel, which required suspects to swear to their innocence and then swallow a piece of blessed bread and cheese without choking to death. It sounds like a procedure that would require a miracle to convict rather than to acquit, but no records survive to confirm or question its effectiveness. One incident from the eleventh century suggests, however, that there were at least some medievalists who regarded it as reliable. The tale concerns the Earl Godwin of Wessex, an eleventh-century maker and breaker of monarchs, who is said to have got up to no good in 1036 while playing host to one Prince Alfred, a young pretender to England’s hotly contested throne. Chroniclers record that Godwin began the evening pleasantly enough, entertaining Alfred at his castle and promising to support his claims, but ended it considerably less cordially by handing him over to his mortal rival, Harold Harefoot, whose henchmen extracted his eyeballs and let him bleed to death. Godwin soon gathered together the requisite number of cronies to swear to his innocence, but Edward the Confessor harboured a lurking doubt and took the opportunity at an Easter banquet seventeen years later to repeat the accusation of murder. Godwin seized a chunk of bread and raised it to the heavens. ‘May God cause this morsel to choke me,’ he bellowed, ‘if I am guilty in thought or deed.’ The chroniclers – none of whom, admittedly, had much time for Godwin – record that he chewed, trembled, and dropped dead.

The notion of God as umpire attained its purest expression in trial by combat. The ritual required plaintiff and defendant to prove that He would take their side in a fight, and after weapons were blessed – to neutralize blade-blunting spells and the like – victory would go to whoever reduced the other to submission or death. There were subtle variations. Women, priests, and cripples generally had to hire professional fighters. German jurisdictions often found other ways to level the odds: a man might be buried waist-deep and armed with a mace, for example, and his female opponent allowed to roam free but given only a rock in a sack. The residents of East Friesland allowed accused murderers to shift the charge onto a third party and prove their innocence by defeating him rather than their accuser. The choices were greatest of all for a defendant in twelfth-century England and France. He could turn the accusation onto innocent bystanders, challenge his own witnesses or, for a few gloriously violent years, appeal a verdict by battling those who had delivered it.

Compurgation and trial by ordeal had little to commend them by modern standards. Although the more blood-curdling ceremonies presumably terrified some guilty people into confessing, only the laws of probability offered any guarantee of occasional efficiency. In an age committed to the notion that a just God was perpetually tinkering with His handiwork, it must however have always been considerably easier to assume the rituals’ effectiveness than to imagine why they might not work. Scepticism was clearly abroad as early as 809, when Charlemagne felt it necessary to bolster ordeals with a law commanding his subjects to believe in them; but even the doubts were generally irrational. Pope Eugene II expressed concerns about perjury during the 820s but he was more worried for the souls of witnesses than the reliability of their evidence – and resolved his misgivings by ordering that defendants undergo the ordeal of cold water instead. Fifty years later, Pope Nicholas I banned trial by combat but he too was no more than suspicious of its value: he replaced it with the ordeal of boiling water, and noted that David’s defeat of Goliath proved that judicial duels might sometimes work.

The mood began to change with the turn of the millennium. As the solstice of AD 1000 came and went with no sign of Armageddon, widespread relief was followed by a sense of rebirth across southern and western Europe. Within less than three years, according to the eleventh-century chronicle of the monk Rudolfus Glaber, men everywhere ‘began to reconstruct churches…It was as if the whole world were shaking itself free, shrugging off the burden of the past, and cladding itself everywhere in a white mantle of churches.’ The physical renewal was complemented by an intellectual revival no less palpable. For the wind that had once moved men like Aeschylus and Protagoras, the belief in reason that had been so long stagnant in Europe, started once again to blow.

Muslim scholars in Córdoba and Persia contributed considerably to the new atmosphere, thanks to their possession of Greek texts that had been lost to Latin Europe for centuries, but so too did the rediscovery in around 1170 of a document that was quintessentially European. And the latter work would ensure that lawyers were at the vanguard of the intellectual revival. For a brightly coloured envelope emerged in Pisa – found, according to legend, by a soldier as he pottered through the ruins of Amalfi – and it contained the core of the vast legal code that the Emperor Justinian had enacted during the dying days of the Western Empire.

The rediscovery of the Digest coincided with a major clash between the papacy and Germany’s imperial throne, and at a time when no source of authority was quite as compelling as tradition, its impact was immense. Clerics were soon flocking to Italy to trawl its text, and as they did so the first great law school to appear in Europe since the days of the Empire coalesced in Bologna. Students were soon producing inventive, ingenious, and mutually contradictory theses aplenty, but when Justinian’s laws were matched against contemporary practice, one fact was stark. They contained not a jot of support for trials by ordeal. The work of canonical scholars, who were simultaneously organizing centuries of papal edicts and saintly pronouncements into systematic compilations for the first time, only made it clearer that the same was true of Scripture. A problem was becoming apparent.

The first generations of scholars hesitated to follow their concerns through, but by the late twelfth century opponents of ordeals were increasingly making themselves heard. One of the most outspoken was Peter the Chanter, a prominent theologian based at the Parisian cathedral of Notre Dame. If trial by battle was so infallible, he wondered, why did people who hired champions invariably prefer seasoned warriors to wizened old men? When three defendants were charged with the same offence, and were therefore required to carry the same red-hot iron in turn, was it really divine intervention that made the last in line least likely to show a burn? And what did it mean to say that God was watching over every ordeal if – as Peter knew had occurred – people were sometimes hanged for crimes that had not even taken place? Peter’s conclusion, reiterated to room after room of spellbound students, was as simple as it was revolutionary. The system tempted the Lord to work miracles more than it tested humanity for its sins, and the clergy should have nothing to do with it.

Complementing such principled criticisms were eminently practical ones. Even at its fairest, the system was as likely to free the guilty as to convict the innocent; and in the hands of priests with an axe to grind, it could be even more arbitrary. So great a discretion in the hands of clerics meant that secular rulers were often suspicious of the system but during the twelfth century the problem became acute. For ordeals finally began to operate against the interests of Catholicism itself.

The late medieval Church was corrupt as old cheese, filled with drunks and fornicators who expected congregations to subsidize their sins, and countless reformers had begun to emerge by the twelfth century. From the Church’s point of view their prescriptions could only worsen the rot. Henry of Le Mans roused rabbles across eastern France for three decades after 1116, with fervent sermons that condemned rituals ranging from baptism to prayers for the dead – and, implicitly, rejected the need for a clergy at all. Peter of Bruis simultaneously led riotous mobs through the south of the country, urging his followers to munch meat on Fridays and make bonfires of their crucifixes, until outraged opponents burned him alive in one of his blasphemous blazes during the early 1130s. Most ominous of all was a philosophical tradition known as dualism. It had been incubating among Christian communities in the Balkans for several centuries and now began to spread through western Europe via the ports of southern France – and it took issue with the Church on the nature of evil itself.

The dualists called themselves Cathars, after the Greek word for purity, and their challenge to Catholicism was profound. Whereas Catholic scholars would be content to spend lifetimes trying to work out why a benevolent and omnipotent God seemed so tolerant of unpleasantness on earth, the heretics plumped for a very simple explanation: that He had no choice. The world in its entirety, they believed, lay firmly under the control of Satan and life amounted to an unhappy moment of incarceration within a tomb of flesh. The soul’s salvation demanded abstention from sex, meat, and dairy products, ideally in person but alternatively through one of the Cathars’ abstemious clerics. Those who grasped the truth and confessed their creed at the blissful moment of death could expect an eternity of ethereal perfection.

The Church was not impressed. It took grave exception to the suggestion that its theology was a delusion founded on a mistake. And although it had its own impressive traditions of self-mortification – running from Origen, a founding father who had castrated himself for love of the Lord, through innumerable pillar-squatting and thorn-bush-dwelling hermits – it had by the twelfth century become extremely reconciled to earthly things. Church propagandists were soon recycling hoary myths of cannibalism, bestiality, and promiscuity that Roman authorities had once used against the early Christians, while Pope Lucius III ordered every bishop in 1184 to smoke out the heretics in his diocese by way of an annual dragnet. The unbelievers continued, however, inexorably to advance. By the end of the century, Catharism was running Catholicism a close second across much of northern Italy. In the Languedoc, a politically volatile region of southern France, there were large pockets where it was not so much a heresy as the orthodoxy.

The crisis came to a head with the advent of 37-year-old Lotario de Conti to the papacy in 1198. The youngish Lotario took the name of Innocent III and a contemporary fresco painting shows him to have a ruddy baby-face, but he was in fact about as ruthless and astute a politician as would ever occupy the Holy See. Soon after his accession, he wrote that the relationship between royal and papal authority resembled that of the sun and the moon – and the papacy did the radiating rather than the reflecting. He had his eyes on a prize: a world that owed its primary allegiance not to kings but to God, and more specifically, to His earthly representative. In pursuit of his vision, Innocent would blast seven kings and two emperors with excommunications and interdictions during his eighteen-year pontificate. But he was also honest enough to recognize that the Church was as much part of the problem as its solution. In a series of letters, he condemned his own bishops for whoring, hunting and gambling while heresy had spawned, slumbering like dogs too dumb to bark – and he now turned, at last, to the challenge that others had spent decades avoiding.

The first element of the counter-attack was put in place over the winter of 1205-6, when Innocent granted an audience to a charismatic Castilian in his mid-thirties called Domingo de Gúzman. The Spaniard, who dreamt as fervently as any heretic of pain and poverty, had already spent time preaching against the Cathars and he had come to Rome hoping for permission to convert infidels on the Mongol fringes of eastern Europe. Innocent saw in his gleaming eye an energy that was needed closer to home. The pontiff sent him straight back to the Languedoc. Domingo returned to find that monks from the wealthy Cistercian order still in slothful charge of the Church’s anti-heresy drive, but he was soon co-ordinating a mission that would transform Catholicism as much as it confronted its heretical opponents. Ostentatiously humble and tirelessly willing to debate any Cathar into the ground, he inspired an increasing number of acolytes – the Dominicans – who would become the spiritual shock troops of Catholic resurgence. The battle for hearts and minds had begun.

At the same time, back in the Eternal City, Innocent was busily exploring the possibilities of a more conventional conflict. Secret requests to King Philip Augustus of France to launch a crusade against the Cathars came to nothing however, the French monarch pleading a prior engagement to destroy King John of England, and Innocent hesitated to sponsor unilateral military action against a nominally Christian region. But Domingo’s disputations and Innocent’s hesitations then came to a sudden end.

On 13 January 1208, one of Innocent’s legates, awaiting a ferryboat on the banks of the Rhône, was murdered by a horse-borne killer. The rider, who ran a sword through his victim’s back, instantly galloped back into the anonymity from which he had swooped, but his bull’s-eye had consequences as momentous as those of any other homicide in history. A contemporary account describes the crisis council that Innocent now convened. Between the stone pillars of St Peter’s, surrounded by a circle of twelve cardinals, he called down a curse upon the assassin and snuffed out a candle, before demanding in the gloom what was to be done. One of his most trusted lieutenants, Arnold of Cîteaux, stood next to a pillar with head bent and then raised his eyes towards Innocent. ‘The time for talking is over,’ he replied. Innocent, his chin in one hand, nodded – and then declared, for the first time in Christian history, a crusade against an enemy within the Church itself.

Greedy barons, eager to participate in a papally sanctioned rampage through the wealthy Languedoc, contributed thousands of troops to the army that set off from Lyons in June 1209. The fighting would last two decades, but the force faced its first test just a month later, at the Cathar stronghold of Béziers. The city’s fate was emblematic of the mentality that had produced trial by ordeal, and constituted a suitably sanguine curtain-raiser to the four centuries of religious zealotry that were about to engulf Europe. While the soldiers prepared for a lengthy siege, setting up their catapults, tents, and latrines on the plains around the city, a group of kitchen boys mounted a quixotic assault on its walls. They somehow broke through. Within minutes, crusaders were pouring into the breach and Arnold of Cîteaux – told that it was impossible to distinguish Catholic from Cathar – was asked for his orders. ‘Slay them all,’ he reportedly murmured. ‘God will know His own.’

The news from Béziers overjoyed Innocent – who postulated that God had deliberately held back from destroying its residents with the breath of His nostrils in order that the crusaders could earn salvation by exterminating them personally – but no Catholic of his intelligence trusted in the sword alone. The Church needed a procedure that could detect the canker before it took hold, and that was a question of law rather than war. Innocent was never likely to think highly of trials that entitled his priests to extort several shillings for boiling a kettle, and having studied law at Bologna and theology at Paris, he would probably have been aware of Peter the Chanter’s theoretical critiques of trial by ordeal. But the most decisive argument was almost certainly a pragmatic one. A suspected heretic would escape punishment if acquitted. Innocent was too hard-nosed a pope to leave the future of his Church to the vagaries of divine intervention.

The papal interest in reform was already evident. Innocent had previously curtailed the use of compurgation in Church disciplinary cases, and in 1199, had approved a novel way of proceeding in criminal cases – per inquisitionem. The new technique entitled judges, in suitably clear cases, to launch inquiries of their own motion. That was, pointed out the pontiff, no more than God had done at Sodom and Gomorrah. The reform was a sign of things to come – and they came at the Fourth Lateran Council of November 1215.

The Council, which lasted three weeks, was an assembly of about four hundred bishops and over a thousand abbots, ambassadors, priors, and proxies from every country in the Catholic world. It was one of the grandest gatherings that Europe had ever seen, a fiesta of fireworks and parades so raucous that more than a few visiting pilgrims were trampled to death. But amidst all the excitement, Innocent remained firmly in control. Seventy reforms were presented to the delegates, for approval rather than debate, and they left few abuses unaddressed. As part of a crackdown on clerical misbehaviour, priests were forbidden from throwing dice, watching clowns, and wearing pointy-toed shoes. Princes were instructed to make Muslims and Jews wear unusual clothes, because too many Christians had been having sex with them and then claiming not to have noticed the difference. Every Catholic was required to make confession at least once a year, on pain of excommunication and burial in unhallowed ground. And tucked away in the package was Canon 18, which prohibited priests from blessing ordeals by water and fire. On 30 November, Innocent exposed a chunk of the True Cross for the delegates’ adoration and sent them home. It would take several years for the reforms to percolate through the continent, but the deed had been done. Since ordeals could not occur without priestly participation, European criminal justice had been transformed for ever.

A thought-provoking way of appreciating the significance of 1215 is offered by Lewis Carroll’s Alice’s Adventures in Wonderland. As any once well-read child will recall, the tale concludes with a trial at which the Knave of Hearts is accused of stealing the Queen’s tarts on a summer’s day and making good his escape. After witnesses testify that jam tarts are made of pepper and accuse the Knave of failing to sign a poem that he did not write, the proceedings culminate in a moment of high drama. The Red Queen, responding to her husband’s suggestion that the jurors consider their verdict, splenetically insists that he has it backwards. ‘Sentence first –,’ she screams, ‘verdict afterwards!’ The merest infant knows that she is in fact the one who is wrong; Alice herself is so exasperated by the illogic that she brings down the house of cards, and wakes from Wonderland to boot. But there are many times and places where the distinction between sentence and verdict has been far less clear.

Wrongdoing in non-Western cultures has often been tackled by rituals that have assumed guilt as much as they have investigated it. Among nineteenth-century Angolans, to take just one example, the fact that a woman was eaten by an alligator while her two companions survived could be regarded as a sure sign of sorcery, and a hearing might be held simply to establish which of the survivors had worked the magic. The pre-modern Western world blurred the distinction between investigation and verdict even more comprehensively. Ordeals and compurgation combined them into a single ritual that operated as much to discover if a wrong had occurred as to establish a suspect’s responsibility for it. The idea of distinguishing the two issues was so alien to Dark Age thinking that lawyers had not even possessed a term to describe the process of weighing up evidence: the only one in use was probatio, or proof. But in the mid 1200s the word triatio entered the legal vocabulary of Christian Europe for the first time. Whereas the Dark Ages had tackled mischief with magic, through pleadings that clashed like mighty spells and rites that unlocked the secret will of God, the Western world had recovered the option of holding an inquiry.

The new faith in human scrutiny would also encourage tremendously significant developments in the field of moral philosophy, and few thinkers were more seminal than a pensive fellow called Anselm, sometime Archbishop of Canterbury. In the 1090s, he set to wondering why God had thought it important to manifest Himself in human form. As his inquiries proceeded, he found himself puzzled how it was that humanity could be absolved for murdering Jesus – for although crucifying the Messiah seemed a conclusively evil thing to do, Jesus himself had asked that his killers be forgiven. Anselm, committed like any good eleventhcentury scholar to the principle that there was a reason for everything, pondered the text until he realized that the answer was staring him in the face. Christ himself had argued from the cross that his killers deserved mercy ‘for they know not what they do’. Although the plea is a reminder that God the Father had regularly exhibited a more draconian stance, the insight set great chains of reasoning rattling through Anselm’s mind. ‘Had they known it, they would never have crucified the Lord’, he mused, before explaining that, ‘A sin knowingly committed and a sin done ignorantly are so different that an evil…may be pardonable when done in ignorance.’

The belief that people deserved condemnation only if they understood what they were doing was not new. Adam and Eve had established the moral relevance of knowledge, and peoples from the Babylonians onwards had taken the view that intentional wrongs were at least sometimes more enormous than accidental ones. Coming at the end of the Dark Ages, Anselm’s distinction between sins deliberate and ignorant was, however, a radical reassertion of the importance of choice. Thinkers around the continent would soon follow his lead, and the consequences would be far-reaching. Theologians would build on it to develop a concept known as the canonical theory of culpability, which held that guilt depended on a sinner’s state of mind. Lawyers would then argue on the same basis that justice demanded not just an inquiry, but one that could establish what a person thought.

All the changes, like Innocent III’s abandonment of fire and water ordeals, were the product of a tide rather than a tsunami, and their impact on Europe’s judicial systems would be correspondingly gradual. Compurgation would linger for several hundred more years as a way of resolving some civil disputes. The belief that God watched over criminal justice would see suspected witches swum in water four centuries after 1215, while trial by battle remained a legal option in England until 1819. The ordeal of the bier, whereby accused murderers touched their supposed victims and faced condemnation if the corpse bled anew, was arguably most tenacious of all. It was last seen in 1869, when two hundred people were paraded past two bodies in Lebanon, Illinois, in the hope that the cadavers – or, perhaps, the killer’s own sense of guilt – would identify the murderer.

The response to Innocent’s ruling would, however, be both profound and permanent. As Chapter 3 will show, judges on the small island of Britain would simply adapt the old oath-taking rituals and make jurors out of conjurors. On the continent the revival of rationalism and Roman law would lead to root-and-branch renewal of the law. Innocent III had already approved a ruthless model for judicial reform, based on God’s activities at Sodom and Gomorrah. The once imponderable power to judge right and wrong was being arrogated on behalf of lawyers, on the assumption that sufficiently rigorous intellectual inquiry would produce both truth and justice. In an age when evidence and intention were becoming increasingly important, those lawyers would formulate techniques capable of examining not only what people had done, but also what they had thought. Defendants had been tormented by conscience at least since the time of Socrates, but the idea that judges too could explore the secrets of the criminal heart represented an unprecedented extension of official power. The Inquisition was dawning.

2 The Inquisition (#ulink_859b1e7e-c7a4-5398-9701-cde845a060bf)

‘My position is becoming more and more difficult.’ ‘You are misinterpreting the facts of the case’, said the priest. ‘The verdict is not so suddenly arrived at, the proceedings only gradually merge into the verdict.’ ‘So that’s how it is’, said K., letting his head sink.

FRANZ KAFKA, The Trial

The disappearance of ordeals created a legal vacuum, but within two decades the papacy that had abandoned them was rushing to fill it. Justice had previously rested on a belief, common to all participants, that the performance of certain rituals would automatically unlock the judgments of God; but the powers to inquire and judge would now be placed firmly in the hands of human officials. In the name of stamping out heresy, the Church also invented ways to explore the minds of those it suspected. At a time when scholars were reasserting a link between the state of those minds and sinfulness, wrongdoers would be made to internalize the reasons for their condemnation and to display in public their obedience to the rules. Communities had expected submission from criminals since the time of Socrates, but willing degradation would now attain a status that it had never previously possessed. The confession was born from the Church’s war on heresy – but lawyers soon fetishized it as a mark of official power, and developed techniques to extract it that would outlast by centuries the threat that they were theoretically intended to meet.

The machinery of repression available to the Church in the early 1200s had been extremely lacklustre. Clerics had been too complacent to hunt down its enemies. Trial by ordeal was too irrational to locate them. And even if a bishop got round to convicting a heretic, the only punishment he could impose was excommunication and denial of Catholic burial, a fate unlikely to disturb the repose of any self-respecting apostate. Innocent III had cleared the way for reform by abolishing ordeals and establishing orders of monks who would report directly to the Holy See, but when he died in 1216 the most fundamental problem – the papacy’s lack of muscle – remained unresolved.

That was about to change. In 1232, Pope Gregory IX persuaded Emperor Frederick II of Germany that as a good Catholic, he should instruct his judges to burn heretics as and when officers of the Church identified them. He simultaneously advised monks at the recently established Dominican friary at Regensburg to get identifying. Gregory’s relationship with Frederick was always precarious, and it collapsed in 1237, when he denounced his erstwhile ally as ‘a Beast…with the feet of a bear, the mouth of a raging lion, and the [limbs] of a leopard’, but by then the dalliance had already borne fruit. And its offspring was the papal Inquisition.

It would be several decades before the system reached maturity, but the template was established within months of Frederick’s agreement with Gregory. Conrad of Marburg, a gaunt and zealous priest who rode about on an ass, had been snooping around the Rhineland on Rome’s behalf for several years, and he now began to send back some alarming reports. Although the only sectarians present in significant numbers were the Waldensians, whose heresy was essentially to trudge around without shoes and preach that clerics would do well to do the same, Conrad claimed to have encountered practices far more troubling. The region was infested with people who celebrated Lucifer as the true creator, he warned. They believed, among other outlandish things, that the Eucharist should not be swallowed but spat into a latrine. Converts were initiated at meetings attended by the Devil himself, who generally assumed the form of a toad, a pale-skinned man, a goose, or an immense black cat with a stiff tail. After kissing his anus, the heretics would extinguish the candles, fumble for each other’s genitals, and embark upon an orgy that ended only with another hellish manifestation, this time of a character with loins as furry as a feline and chest more radiant than the sun.

The claim replicated rumours that had been circulating about religious deviants since Roman times, and most historians agree that the tales of Luciferan worship and sexual free-for-alls bore about as much relation to reality as the man with the furry loins. But whether it was malice or mistake that inspired Conrad to his discoveries, Gregory was appalled – and, for the first time, in a position to take action. He urged his emissary to gather some evidence, and Conrad threw himself into the task with grim enthusiasm.

Travelling from town to town in the company of two sinister sidekicks – a certain Conrad Torso and a character with one arm and one eye known only as Johannes – he was soon finding heretics wherever he looked. As the baleful trio progressed, shaving the heads of suspects who named their accomplices and incinerating those who did not, accusations ricocheted ever higher up the social scale. In 1233, Germany’s bishops and nobles finally realized that if they did not stand together, they would burn separately.

The showdown occurred at Mainz in July, when Conrad of Marburg summonsed Count Henry of Sayn to answer reports that he had been seen riding a giant crab. Sideways motion was, symbolically speaking, a sure sign of heresy and the charge was a grave one; but the city’s clerics and aristocrats stiffened their spines and collectively testified to Henry’s piety. Conrad’s witnesses, sniffing the wind, admitted that they might well have been mistaken about the crab. The inquisitor dropped his case, vowing revenge, but the game was up. As he trotted furiously back to Marburg he was murdered on his ass, and his henchmen only outlasted him by a few months. One-armed Johannes was last seen in Freiburg, oscillating from the end of a lynch mob’s noose, while Conrad Torso, evidently more eager than authoritative, was sliced to ribbons in Strasbourg by the first person he summonsed.

Pope Gregory, infuriated with his clergy, raged that Conrad’s assassination was a ‘thunderclap that had shaken the walls of the Christian sanctuary’. The bishops had, once again, obstructed a papal attempt to get tough on heresy. But their power to do so was about to be drastically curtailed. Conrad’s adventures confirmed that an alliance between agents loyal to the pope and secular judges could potentially work wonders, and although Gregory’s relationship with Germany’s emperor remained fraught, France was nurturing a monarch with whom the papacy would be able to do far better business. Louis IX had been under papal protection since the death of his father in 1227. By the time he reached his majority in 1235, Conrad of Marburg would have gained a redoubtable successor.

St Louis, as he would one day become, was a gangly, smooth-featured and prematurely balding young man, but the callow physique belied a prodigious faith. He delighted in dining with beggars. Few were the lepers whose feet he did not stoop to wash. And notwithstanding the occasional impulse to abandon his throne for a monastic cell, he wielded the sword of righteousness as surely as he loved his fellow man. It was better to disembowel Jews than dispute with them, he proposed, while blasphemers in his realm were condemned to be branded on the lips or garlanded in pig entrails. It is perhaps little surprise that when Gregory suggested, in the early 1230s, that France could do with some Dominican inquisitors, Louis accepted with enthusiasm.

Louis’ eagerness was motivated primarily by piety, but politics also played its part. Forces loyal to the Church had recently won a final military victory in the quarter-century crusade against the Cathars, and the destruction of the Languedoc offered unparalleled opportunities. The heretics, knights, and troubadours of the region had always been a little too lively to be loyal, but the smoking battlefields that remained looked ready for incorporation into France proper. In a deadly pas de deux with Gregory IX, Louis therefore despatched his own judges to join Gregory’s monks in asserting royal control over southern France.

The consequences would be far-reaching. Louis would always be at least as concerned to crack down on official abuses as to impose his will. Canonical law could be no less benign, with scholars finding the basis for a whole catalogue of defendants’ rights in Justinian’s Digest and the Old Testament. But as the first papal inquisitors arrived in southern France in 1234, lighting execution pyres that were soon roaring as far north as Flanders, the structure of customary and canonical law began to buckle. The squads of young monks, faced with resistance and riots, were soon translating theoretical safeguards into practices of military efficiency. The idea that no one should be forced to incriminate himself or herself, in support of which canonists had pointed to the silence that Jesus permitted Judas, became increasingly illusory. The notion that some matters were best judged by God, exemplified by Joseph’s decision not to shame Mary by way of public divorce, similarly eroded. As humility and mercy evaporated, suspects were instead arrested on the strength of anonymous denunciations, denied legal assistance, and made to state on oath what they thought might have been alleged against them. Stings and bugging operations were used, with agents provocateurs encouraging malcontents to share their thoughts while hidden scribes jotted down every word. The powers claimed were as hygienic as they were punitive. Heresy was conventionally regarded as a disease, and just as the Book of Leviticus had once prescribed the destruction of buildings that harboured pestilence, the houses in which heretics had met were soon being demolished as a matter of course.

The effect was to legalize terror, and a whiff of the fear that swept the Languedoc still emanates from a story recounted about Raymond de Fauga, a Dominican appointed to the bishopric of Toulouse in August 1234. Told that the dying matriarch of a leading Cathar family was deliriously calling for a priest to console her, he rose from his lunch and marched to her house. Shocked relatives were pushed aside as he strode to her deathbed, where the feeble woman obliviously recited her beliefs and offered the traditional Cathar prayer that her life come to a good end. On de Fauga’s invitation, she then confirmed her creed – whereupon he rose to his feet, declared her an impenitent heretic and sentenced her to death. She was lashed to her bed, which was carried to a meadow outside the city gates and set ablaze. The Dominican chronicler who recorded the episode – with pride – observed that de Fauga and his companions then returned to their refectory and polished off their interrupted lunch ‘with rejoicing’.

By the 1240s, inquisitors had reconsolidated Catholic dominance in the cities of the Languedoc, and as their successors spread across the countryside of southern France and northern Italy, Europe’s legal tradition began to undergo permanent change. In 1252, Pope Innocent IV published a bull ‘On Extirpation’ (Ad extirpanda), which authorized the use of torture against ordinary citizens – a practice permitted under Rome’s Emperor Justinian, but seen only exceptionally among barbarian tribes in the seven or so centuries subsequent. A lingering sense that the Church ought not to be in the business of bloodshed led Innocent to stipulate that inquisitors should subcontract interrogations to secular authorities, and major haemorrhages, amputations, and death were to be avoided – but the squeamishness would not last. Over the next decade, papal inquisitors were authorized to conduct their own questioning, and to absolve each other if, in their zeal, it generated too much mess. Their unaccountability increased with their discretion, and by 1262 they were almost literally a power unto themselves – capable even of reversing a bishop’s sentence of excommunication if God’s work so required.

Secrecy simultaneously entered the trial process for the first time. Whereas Roman law, ordeals, compurgation and canonical law had all regarded openness as essential to justice, the first legal manual for Languedoc’s papal inquisitors, written in 1248, instructed them to ignore the old rule that witnesses’ names be disclosed. Investigators would instead issue blanket summonses to every male over fourteen and female over twelve in a region, who presented themselves for questioning in public, but were questioned in private. As though to compensate for the change, judgment was simultaneously transformed into a magnificent ceremony, usually staged in the square of the largest regional town, at which church officials would broadcast the verdicts reached and penances imposed. Those who had attended a Cathar service might be sent on a pilgrimage, for example, or instructed to sew a large yellow cross onto a pair of overalls and wear it for the rest of their lives. More serious offenders would be told to present themselves to their priest with willow switch in hand and ask for a public flogging. Particularly incorrigible hotheads and proselytizers might be sent to close confinement for a decade or two.

At the very end of the list would be those who refused to admit their errors – who were, in the scatological language favoured by the Inquisition, to be ‘cut off like an infected limb’ because they had ‘returned to their heresy, like a dog to its vomit’. The rules that prevented clerics from spilling blood would, even in the war on heresy, have to be observed. The bishop or inquisitor would therefore ‘relax’ impenitents into the hands of secular courts and ‘affectionately request’ the court to be ‘moderate’ in its sentence. The double-talk was as psychotic as it sounds. Moderation involved chaining the convicts to stakes while piling logs up to their chins, burning the bodies for hours, and finally smashing the carbonized skulls and torsos with a poker. And although zealous papal inquisitors would, for long centuries, shelter behind the fiction that the Church longed to re-embrace its naughty children while someone else insisted on killing them, they were swift to ensure that no one misunderstood the meaning of relaxation. Anyone who assisted excommunicated heretics – by, for example, arguing that they were innocent – became personally liable to condemnation. According to a compilation of German laws written in the 1230s, any judge who was too moderate towards a relaxed heretic was liable to ‘be judged…as he himself should have judged’ – or, less euphemistically, to be burned to death.

In view of the Church’s institutional psychopathy, it is unsurprising that popular myth, bolstered by several centuries of anti-Catholic propaganda, now recalls the Inquisition as a blood-drenched threshing machine. Uneven record keeping and Vatican secrecy mean that no reliable estimate of its death toll is actually possible, but the total number of certain executions in fact falls no higher than the low thousands. Hundreds of thousands certainly passed through its mill, but it was more insidious than murderous, designed to recover sheep rather than to annihilate them. Anyone who publicly repudiated heresy was given at least one opportunity to return to the fold. Imprisonment was the preferred penalty even for the recalcitrant. At the same time, although it killed relatively few, it released even fewer. Indeed, it barely comprehended the concept of an acquittal. To be suspected of heresy was heretical in itself, and relapse was a capital offence, with the result that arrest was tantamount to a suspended death sentence. Release invariably required a display of repentance, whether the wearing of a cross, the taking of a beating, or departure on an enforced pilgrimage. Even those condemned to death were expected to show their submission. After being compelled to walk to the stake or gallows in a white shift, clutching a candle of penitence, they were offered the last rites – one final opportunity to submit to the Church in whose name they were being killed.

The Inquisition succeeded in the short term. Orthodoxy was stamped back onto the towns of the Languedoc, and rural communities slowly gave up their heretical ways. Die-hard Cathars melted away into the towns of Germany and the mountains of the Savoy, leaving behind only the crenellated ruins that still litter the region. The repression arguably generated considerably more heresy than it ever destroyed, for the refugees maintained a tradition of dissent that would eventually fuel the Protestant Reformation; but the effect of their departure was to defuse the crisis that had brought the Inquisition into being.

Its techniques would not come to an end however. A brood of baby inquisitions would now hatch from its belly as the kings and nobles of Europe realized just how useful the machinery devised by Pope Gregory IX and his successors could be. The Spanish Inquisition has entered history as its truest successor, thanks to the cruelty of its fifteenth-century anti-Jewish persecutions and its more recent activities on Monty Python’s Flying Circus; but it was neither the first nor the most influential of the offspring. It was instead in the national courts of France and then Germany that the discomforting procedures pioneered by men like Conrad of Marburg would take deepest root.

When King Louis IX agreed with Gregory IX to import Dominican inquisitors into his realm, it was not just the battle against heresy that was transformed. At a time when ordeals had just been abandoned, his own officials needed a new way of deciding cases, and they were soon taking great leaves from the books of the Dominican inquisitors. It was not long before witnesses and defendants were forced to answer questions on oath. In 1254, two years after Pope Innocent IV had authorized the use of torture, Louis followed suit in that regard as well. Like the papal tribunals, his courts would always try to strike a happy medium between maximal pain and minimal bloodshed. Water torture, sleep deprivation, and prolonged isolation were always the most popular methods. Some courts preferred to insert hot eggs under suspects’ armpits. The strappado, a rope-and-pulley apparatus used to raise and drop a suspect from the roof, would become ubiquitous.

But all the cross-fertilization had a paradoxical effect. As lessons derived from the papal Inquisition fortified France’s royal courts the kingdom was becoming one of the most organized states in Europe, but the same process made those courts increasingly likely to tread on papal toes. Conflicts between kings and popes were nothing new, but at a time when national loyalties were strengthening, the personal rivalry was escalating into a struggle between Church and State. Thirteenth-century popes fought dirty – most spectacularly in 1268, when papal scheming resulted in the beheading of Conradin Hohenstaufen, the 15-year-old heir to the German Empire, whose death condemned Germany to five centuries of disunity – but in France the papacy would now meet its match. Its nemesis would be Louis IX’s grandson, Philip the Fair.

Philip, just seventeen when he assumed the French throne in 1285, dreamed as avidly as his grandfather of eradicating the infidel. Like Louis, he too had visions of a Christian realm that would stretch from Paris to Jerusalem. But a deep temperamental difference distinguished the two men. Whereas Louis had placed both body and country at the service of the pope, Philip saw the Holy See as an obstacle to his ambitions rather than the inspiration for them. It was an attitude that always boded ill for relations between Paris and Rome, and at the end of 1294, the route to Christian harmony became rocky indeed. For the king who would be pope found himself confronted by a pope who would be king – Pope Boniface VIII.

Boniface was a worldly man, as pontiffs go. His fondness for the ladies was such that he married one and fathered another; while his affection for the men was so notorious that rumours of pederasty would follow him far beyond the grave. He assumed the papacy only after encouraging his predecessor, Celestine V, to resign – whereupon he installed the 81-year-old hermit, who had not wanted the job in the first place, into an oubliette to die. He was never going to take kindly to a whippersnapper like Philip, and the tensions began rising almost immediately. The French king, whose realm constantly teetered on the brink of bankruptcy, had begun to extort money from the country’s monasteries in order to finance a war with England, and in 1296 Boniface ordained that monarchs who taxed clerics and clerics who paid up were ipso facto excommunicated. The bull was meant as a shot across the bows and was reversed a year and a half later, but Boniface followed up by elevating Louis IX into St Louis, canonizing a French king for the first and last time in Christian history. Recognition of the grandfather was no honour to the grandson – and it was not meant to be.

Battle was about to begin – and the weapons of choice would be legal ones. Canonical law of the late thirteenth century was still Church property, its mysteries guarded by monks and arbitrated by bishops, and Boniface was regarded by many, not least himself, as the finest jurist of the age. Allegiances across Europe were switching from papacy to nation, however, and under the patronage of Philip, France’s lawyers were emerging as a distinct and powerful social class. The effect was that whereas Louis had borrowed the legal tools developed by the Church, Philip deployed them – and his target was the Holy See itself.

Skirmishes began when he sent Guillaume de Nogaret, the most trusted of all his legists, to attend a jubilee that Boniface held at Rome in 1300. Nogaret, a man of humble and possibly heretical origins who had several anti-papal chips on his shoulder, would prove himself a worthy champion. According to his own account, he took Boniface aside as soon as he arrived and warned him, sotto voce, that his simony and extortion – along, presumably, with several more or less unmentionable vices – had to stop for the sake of the Church’s good name. An outraged Boniface had challenged Nogaret to repeat his words before witnesses which, on the Frenchman’s own proud recollection, he promptly did. Philip himself increased tensions in the following year. Eager to reassert French control over the Languedoc, he had one of its key bishops charged with sexual and spiritual offences – and to compound the insult, informed Boniface that he had been driven to act because the cleric had defamed the pontiff by calling him Satan incarnate. Boniface returned fire with a bull in 1302, in which he ‘declare[d], announce[d] and define[d]’ that any ‘human creature’ who refused to submit to papal authority could expect to spend all eternity in hell. Lest there remain doubt about which human creature he meant, he then let it be known that his French ambassador was instructed to excommunicate the French king.

The thunder hung potential throughout the summer of 1303. Aware that a final conflict might be looming, Philip’s lawyers drew up an indictment against Boniface in June, packed with every charge that their hostile, fertile minds could generate – from diabolism and sodomy to materialism and the neglect of fasts. Boniface thereupon drafted a formal document of excommunication. If published, it would have released Catholics everywhere to perpetrate treason and war on the French monarch at their pleasure. But against the power to damn a man till the crack of doom, Philip possessed a weapon that was hardly less potent: Guillaume de Nogaret.

Boniface’s bull was due to be nailed to the doors of the cathedral at Anagni, a small hill town where he maintained a sumptuous palace, on 8 September. It was early on the morning of the seventh that Nogaret arrived. He was carrying his indictment – and was accompanied by 1300 men. As bells rang and dogs barked, the invaders stormed through the narrow alleys, but it was not until dusk that the heavy oak doors of Boniface’s inner chamber were finally broken down. A certain degree of confusion has come to surround the events that immediately followed. Some say that Boniface was found atop his throne in vestment, crucifix and triple-tiered tiara, defiant and ready to die for the honour of his office. Others suggest he was trembling like a human jelly. All agree, however, that Nogaret eventually strode through the splintered door to inform him that, having failed to mend his sodomitic ways, he was required to attend at Lyons for trial.

Boniface in fact survived to be escorted by his allies back to Rome, but the shock was all too much. The man who had once asserted supremacy over the entire human race shrank into a wraith and lived for just five more weeks. He died in his sleep, crumpled like a foetus with both fists in his mouth. Pursuant to legal theories that will be considered more closely in Chapter 5, Philip thereupon campaigned to have his body put on trial and burned at the stake.

The conflict exemplified by the struggle between Philip and Boniface would recur across western Europe. As inquisitorial methods were adopted by secular rulers, those rulers seized control of the system from its creators. Christianity and canonical law would continue to influence continental legal systems until the late eighteenth century, but kings and princes would already have gained the upper hand over papal inquisitors by the fifteenth. The fact that legal procedures were secularized would not, however, make them any more humane. Just as monks and canonists had redefined the law to pursue the Church’s war in the early 1200s, secular lawyers would reinvent it on behalf of their masters to justify use of the rack, the thumbscrew, and the strappado for centuries.

The question of evidence would generate some of the most inventive theories of all. In an era of trials by ordeal and compurgation there had been no need to consider how something should be proved, since the defining event – a miracle or the swearing of sufficient oaths – either took place or it did not. The rediscovery of Justinian’s Digest in the late eleventh century had, however, shown Europe’s lawyers that the Romans had differentiated between proofs and the verdict, and as witnesses entered the scene following the abolition of ordeals, the status of their testimony began to trouble the canonists. The primary problem was that, despite the rationalist aspirations of the age, no one possessed any systematic theory of how contradictory statements were to be weighed up. The Digest’s various recommendations – that judges pay heed to a witness’s social standing and manner of speech, for example – did not take matters very far. When lawyers then turned to chapters 17 and 19 of the Book of Deuteronomy – which required allegations to be proved by two respectable eyewitnesses – a new problem arose. Since the Bible said nothing about how to differentiate truth from lies, judges interpreted the two-witness rule literally. If two people swore to a fact, it was proved – conclusively. The injustice of that was apparent to many people even in the formality-obsessed thirteenth century, and dissatisfaction increased as inquisitors tried applying the rules to heresy. Eyewitnesses to disbelief were necessarily hard to find, and the most threatening heretics were in any event those who kept themselves to themselves. Proving their thought-crimes would require a theory more imaginative than one that depended on eyewitnesses.

The answer to the riddle would be the confession. Admissions have since become so routine a feature of Western criminal justice that it is hard to appreciate just how radical a shift took place during the mid thirteenth century, but the nature of that shift is well illustrated by Louis IX’s laws for southern France. Aware of the deficiencies of the two-witness rule, the king had ordered his judges never to convict on such evidence unless it was backed up by a confession. He was, however, as perturbed by wrongful acquittals as wrongful convictions – and he simultaneously allowed those judges to torture defendants who had aroused suspicion but refused to provide the confession that would be needed to convict them. The law that claimed to protect against unreliable convictions consequently became their primary cause. Within decades the confession was being promoted from a subordinate form of evidence to the regina probationum – ‘the queen of proofs’ – and self-condemnation would soon come to be revered as an almost immaculate guarantor of guilt.

The concept of the regina probationum owed nothing but its Latin to Roman law. It was also alien to the Old Testament – so much so that Maimonides, the foremost Talmudic scholar of the medieval world, declared conviction on the basis of a bare confession to be contrary to divine law. Confessions came to be exalted not because of ancient traditions, but because of seismic changes: a new confidence among political rulers that they could know their subjects’ secrets, and a new morality that was beginning to measure people’s culpability according to the words they uttered.

The tectonic movement occurred on a timescale that is better measured in generations than moments; but if a single occurrence could be identified as pivotal, it would be the Fourth Lateran Council of 1215. In the same set of canons that brought ordeals to an end, Pope Innocent III had commanded that all Catholics annually confess their sins on oath to a priest. The cleric was simultaneously empowered to forgive those who observed the obligation, while those who failed to do so were made liable to excommunication and unhallowed burial. It was a major change. Church thinkers had long agreed that salvation demanded contrition and many had even claimed for the Church a power to forgive sin. No one, however, had ever presumed to suggest that Christians had to verbalize their remorse to be saved – let alone that they had to do so in the presence of a priest.

Innocent’s innovation inspired considerable resistance among ordinary Catholics, and over the next few decades concerted efforts were made to persuade the flock that confession was in their interests. Gregory IX formally advised all doctors to recommend it to their patients, and chroniclers were soon extolling the new sacrament’s benefits. The most influential was a Cistercian monk called Caesarius of Heisterbach whose Dialogue of Miracles, written in the 1220s, would inform popular Christianity for centuries. Four of its twelve chapters were devoted to confessions, and they suggested that their power was prodigious indeed. A popular legend doing the rounds told how St Norbert had exorcized someone of a demon that insisted on revealing the adulteries of everyone around it, but Caesarius now turned the story on its head: he knew of one that had buttoned up simply because the adulterer concerned had confessed. Another fiend had positively lied to protect a girl’s reputation for chastity, so impressed was it by her decision to divulge her sexual history to a priest. Caesarius told of confessions so timely that they had saved vessels from sinking and rendered murderers fireproof even as the flames of their execution pyres were lapping around them. One ancient demon of which he had heard had been so awestruck by the aura of salvation emanating from the confession box that it had insisted on admitting every misdemeanour it had committed since tumbling out of heaven alongside Lucifer. Silence or equivocation, on the other hand, invariably attracted the attentions of less benign apparitions and might even inspire visits from the undead. The message was clear. Blabbing worked wonders, but verbal retention could end in disaster.

There are weighty philosophical arguments to support the belief that expressing responsibilities might lessen them. The insistence on verbalization has always risked robbing speech of its meaning however, and thirteenth-century jurists were soon treating confessions as symbols of guilt rather than methods of establishing facts. The canonical principle that defendants should not be compelled to condemn themselves was watered down to mean only that a forced confession had to be recited in court. It meanwhile became established that torture could be repeated three times. One Dominican inquisitor called Nicolas Eymeric argued in the late fourteenth century that each of the three sessions could itself be ‘continued’ indefinitely. By 1705, one lawyer would be basing his critique of torture on the magnificently metaphysical grounds that justice, like nature, abhorred infinity. Those who managed, despite everything, to hold out, were treated not as innocents but as culprits who had cheated justice, and were typically sent into exile or deprived of an ear on the basis that they deserved punishment for falling under suspicion in the first place. Jean Bouteiller, a jurist of the late 1300s, expressed the prevailing attitude when he advised that a suspect should only ever be released ‘conditionally’ because otherwise ‘it would seem that he had been held prisoner without cause’. His colleagues were evidently of a similar mind. The country’s first trial records, which detail more than a hundred cases from Paris between 1389 and 1392, show an overwhelming majority of defendants confessing and not a single one winning an outright acquittal.

Few trials better capture the shifting meaning of spoken guilt in early modern Europe than the 1440 prosecution of Gilles de Rais. Gilles, born in 1404 as heir to the fortune of three of the wealthiest families of France, enjoyed a youth that seemed charmed indeed for the troubled fifteenth century. At a time when his country was convulsed by a seemingly perpetual war and its nobility torn between those who supported the territorial claims of the English monarchy and the aspirations of the Dauphin, Charles VII, he gambled for high stakes – and won. In May 1429, fighting shoulder to shoulder alongside Joan of Arc, he helped achieve the victory at Orléans that turned the tide of the Hundred Years War. The triumph allowed the French pretender to be crowned at Reims Cathedral, the site of every previous coronation in French history, and his gratitude knew no bounds. Gilles was invited to carry the amphora of anointing oil – no insignificant honour, given that it had supposedly descended to earth on the wings of a heavenly dove – and Charles VII, weeping copiously, concluded the day by appointing him a Marshal of France. At the age of 24, Gilles had reached the top of the tree. The perennial curse of the early achiever is, of course, that all paths from the treetop go down. Even Gilles could hardly have guessed how far he would fall.

Whatever the passions that drove the young hero, they were soon taking him somewhere far from the battlefield. Gilles increasingly neglected his martial duties in favour of the priesthood, and with the war’s end in 1435 he endowed a chapel at his Brittany castle of Machecoul – complete with choir, portable organ, and a chapter of clerics outfitted in fur-lined silk and scarlet – and decided to reenact his most magnificent triumph as theatre in Orléans. It was a glittering train of some two hundred choristers, jugglers, pipers, fire-eaters, and astrologers that now snaked across the countryside – but a shadow was sweeping alongside. For as it moved, children vanished in its wake. Some were last seen taking the hand of rosy-cheeked crones. Others climbed onto strangers’ horses, never to be seen again. And Gilles was enjoying the road show so much that he turned it into a rolling tour.

Over the next few years, the darkness fell deepest around the gloomy towers and brackish moats of Machecoul, and never more so than in 1437, when two small skeletons were found inside the castle. Rumours were soon rife. Some claimed that Gilles was kidnapping youths to sell to the English. Others whispered that he was writing a book of spells with human blood. A few may even have begun to wonder why he had chosen to dedicate his chapel to the Holy Innocents – the infants slaughtered in their cradles by King Herod.

Such matters might ordinarily have come to nothing. Scurrilous tittletattle about the misfortunes of a few under-age peasants was never likely to touch the reputation of a nobleman in fifteenth-century France. The talk of diabolism was a little more risky, coming at a time when Europe’s witch-hunts were warming up, but invocation of demons still remained a popular hobby among French aristocrats. A discreet lord would have had nothing to fear. But discretion had never been Gilles’s strong suit – and incontinence would prove to be his downfall.

As he had traveled, staging miracle plays and mysteries and keeping his choirboys supplied with chalices, censers and pyxes, he had churned his way through the fortune that three bloodlines had taken centuries to accumulate. And in May 1440, hubris finally met nemesis. Having recently sold one of his last properties, a fortress at St-Étienne-de-Mermorte, to a certain Geoffrey le Ferron, he decided that he wanted it back. At the head of a posse, he stormed into its church brandishing a double-headed poleaxe and forced its priest – who was also le Ferron’s brother – to open the castle gates, before tossing him into its dungeon. It is hard to imagine an act of gratuitous violence that would have been better calculated to bring Gilles’s impunity to an end. Invasion of a church violated ancient privileges of the Bishop of Nantes. Geoffrey le Ferron was no mere castellan but treasurer to the Duke of Brittany. The duke was the only man below the French king to whom Gilles owed fealty, and was thus entitled to confiscate what remained of his vassal’s wealth if he was convicted of a felony. Gilles had finally found a mark to overstep.

By the early fifteenth century, the papal–national conflict had been unequivocally resolved in favour of secular rulers in France, and the bishopric of Nantes would now work loyally alongside the Duke of Brittany’s officers. Proceedings were launched in the episcopal court, and covert inquiries produced a secret report in late July. One and a half months later, ducal officers arrested Gilles along with two servants and two priests. Four days after that, on 19 September 1440, he was escorted into the great hall of Nantes Castle to be told that he faced charges of heresy. Gilles had doubtless come to terms with the fact that abducting a priest at poleaxe-point was going to require some penance, but when he was brought back to court almost three weeks later it became clear that the term ‘heresy’ covered a multitude of sins. Alongside sundry acts of impiety, apostasy, and sacrilege, the indictment alleged that he had made pacts with demons, and that he had sodomized and murdered some 140 children.

Gilles seems to have been unable quite to believe that the court was presuming to judge him for such trifles. He haughtily insisted on appealing, and when the judges told him that the request was frivolous, and ought to have been in writing anyway, he fell into a monstrous sulk. Even when the prosecutor swore four times to the truth of his indictment, he refused to speak. Five days later, the displeasure had hardened. Spitting invective at the bench, Gilles condemned his judges as ‘simoniacs and ribalds’ and announced that he would rather hang from a rope than plead to their charges. In the face of such defiance, they deployed the most powerful sanction at their disposal. They excommunicated him.

The judges knew their quarry. When Gilles reappeared two days later he was in tears, begging forgiveness for having questioned their right to try him and pleading for readmission to the Church. The clerics duly re-embraced him to the Church’s bosom, but made sure simultaneously to have him watch his servants and priests being sworn, in preparation for secret interrogations that were to take place over the next few days. The pressures on Gilles were mounting; but when the indictment was read aloud, he seemed strangely disengaged. He admitted borrowing a book that explained how demons might be persuaded to transmute base metals into gold, but made a point of insisting that he had returned it to its owner. He had employed several alchemists to freeze quicksilver, he accepted, but he was anxious to assert that he had neither invoked evil spirits nor made sacrifices to them. Of lost children, he spoke not a word.