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

The allure of Rome was such that Europe’s lawyers would never stop asserting a Latin pedigree for their own legal theories, but a historical firebreak divides the classical and medieval worlds and the claims would very often be wishful ones. Rome’s criminal laws in particular would reach modern Europe only in a highly warped form. There was one aspect of its criminal justice system, however, that was destined to have a lasting and widespread impact, in the field of criminal law as much as any other. The Romans, consummate intriguers that they were, had become fascinated by the Greek art of persuasion, and in the first century BC a defence lawyer called Marcus Tullius Cicero restated the rules of rhetoric in a form that has survived to the present day.

Some of Cicero’s theories were very specific to his time and place. He advised, for example, that anger was best expressed with high-pitched staccato phrases and that speeches should always be made with the right hand extended like a weapon. Energetic passages, he felt, ought to be both introduced and concluded with a vigorous stamp of the feet. But he also possessed a cynicism that was timeless. Advocacy, he claimed, was about advancing ‘points which look like the truth, even if they do not correspond with it exactly’, and he was said to have boasted twice of winning acquittals by throwing dust into his judges’ eyes. His own life encapsulated the mixture of brutality, efficiency, and superstition that characterized Roman criminal law – and never more so than when he took leave of it. He was one of the first people to theorize that laws presupposed the right to a trial, but he personally arranged for several summary executions in 63 BC, and he himself was assassinated twenty years later on the orders of Mark Antony, then one of Rome’s ruling triumvirate. The posthumous treatment of the 63-year-old was eloquent comment on the judicial system that he had come to personify. The rostrum of the Roman Forum, from which he had won so many hearts and minds, was adorned with his severed head and hands. Mark Antony’s wife is said to have taken an even more symbolic revenge. Cicero had recently attacked her in several vitriolic speeches, and according to one Roman historian, she now inflicted the most poetic injustice of all, driving a hairpin through the great orator’s tongue.

Rome formally adopted Christianity as its state religion during the fourth century AD. The Holy Roman Empire would loom large in Europe’s history over the next millennium, inspiring countless wars between popes and princes who sought to cloak themselves in its pseudo-legitimacy, but Roman culture itself would collapse long before the nations of medieval Europe began to emerge. In the middle of the fifth century, waves of invaders thundered out of central Asia and set off a chain reaction of hostilities that soon robbed the Empire of its heart, as barbarian incursions caused the imperial capital to relocate to Constantinople. In the late 520s, Emperor Justinian had his lawyers produce the Digest, a codification of virtually every Roman edict and legal theory ever penned, but his honouring of one tradition was accompanied by the evisceration of another. He simultaneously closed Europe’s last institutional link to ancient Greek philosophy, the Athenian Academy that Plato had established to perpetuate the teachings of Socrates some nine centuries before. A curtain was falling on the ancient world.

Scientists have recently postulated that the impact of a comet or a volcanic eruption set off catastrophic climatic cooling during the mid 530s and, whether or not they are correct, the decade marked the beginning of four centuries of unprecedented gloom. The Black Death reached Europe for the first time, spreading like an inkblot from its southeast corner, and more marauders were soon storming in from the steppes. By the middle of the next century, an entirely new horde was sweeping out of Arabia behind the standards of Islam, conquering, converting, or killing all in its path. Europe’s Vandals, Franks, Goths, and Celts were meanwhile stampeding about like beasts in a forest fire, fleeing disaster one year only to shove their neighbours towards it the next. It was the beginning of the era that the peoples of western and southern Europe would come to call the Dark Ages. As monasteries were abandoned and monks forgot how to read, Christendom dropped the baton of learning that had been passed around the Mediterranean for a millennium. By the time it recovered its wits five centuries later – thanks in large part to translated texts and fresh commentaries preserved by Arab and Persian scholars – Greece would be barely a memory, and Rome’s traditions would have been bastardized almost beyond recognition.

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.