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

Gilles concluded with a plea to all fathers present not to tolerate sloth or fine dressing in their children, and a warning that his crimes were born out of an insatiable appetite for delicacies and mulled wine. By now in tears, there was just one other thing that he wanted to share. Temptation had been strewn across the path of his life, he admitted. It was only by virtue of his steadfast affection for the Church that he had lost neither body nor soul to the Devil.

Any confession made after the threat of torture in response to accusations by imprisoned accomplices has to be suspect, but Gilles’s words – oblivious as a psychopath’s and naive as a child’s – ring so true that they are almost impossible to disbelieve. The portrait draws from life rather than the formulaic fantasies of inquisitors. It does not depict an omnipotent diabolist, but a gullible fool. And the clinical descriptions of murder are not the words of someone who imagined what crime might be like. They are the recollections of a man who had watched children die.

Three days later he was convicted, excommunicated again, and – after another tearful display of genuflecting remorse – formally readmitted to the Church for a second time. Later that morning, he went to the secular court in order to receive his death sentence, and delivered a second public confession at the request of Pierre de l’Hôpital, the senior judge. De l’Hôpital advised him that his shame in this world would precisely alleviate the punishment he was owed in the next, and although there is little indication that Gilles was anticipating much divine retribution, de l’Hôpital was impressed by his contrition. So much so, indeed, that he granted him the greatest boon he could have extended. After pronouncing that Gilles was to be hanged and then burned, he specified that his corpse should be merely ‘embraced’ by the flames – in order that it could then be interred in Gilles’s church of choice.

Gilles, given one last night to make his peace with God, offered a final display of atonement, fifteenth-century style, at the gallows the next morning. Barefoot and clad in white, he exhorted the two servants who had helped him to throttle, disembowel, and sodomize unnumbered children to be strong in the face of temptation. He bade them au revoir instead of adieu, assuring them that their souls would be reunited at the moment of death, because no sin was unforgivable ‘so long as the sinner felt profound regret and great contrition of heart’. All were then hanged and the servants’ bodies, in keeping with their humble stations, were reduced to ashes. Gilles’s corpse, lightly singed, was borne away by assorted ecclesiastics and aristocrats for its honourable burial at Nantes Cathedral.

Gilles’s confidence might strike modern readers as bizarre, repulsive, or even blasphemous, but the scribes and judges who heard him were not just satisfied, but touched, by the piety they detected. A conventional explanation nowadays for their attitude would be that, just as the era was typified by a concern that sinners display signs of their shame, the inquisitorial system regarded the utterance of regret rather than inner remorse as the way to expiate guilt. That assertion does not, however, go very far. It was well-established Catholic doctrine by the fifteenth century that confessions were invalid unless accompanied by contrition, and the trial record itself indicates that at least some of Gilles’s judges wanted insights as well as words. While the witness statements were being taken, he was asked twice if he wanted to ‘justify’ his actions, or set out his ‘motives’, and at the time of Gilles’s first admissions in his prison cell, a particularly telling exchange took place. Pierre de l’Hôpital, Nantes’s senior secular judge, asked him at one point to say who had incited and taught him his crimes. Inquisitors routinely asked the question in the hope of identifying accomplices, but de l’Hôpital was after more than names. When Gilles replied that he had been ‘following his own feelings, solely for his pleasure and carnal delight’, the judge did not only express surprise, but also pressed on. He wanted to know ‘from what motives, with what intent, and to what ends’ the murders and sexual abuse had occurred. An explanation, he urged, would allow Gilles ‘to disburden his conscience, which most likely was accusing him’. The remark inspired indignation. ‘Alas!’ snapped the nobleman. ‘You are tormenting yourself, and me as well.’ The judge fired back that he was not tormenting himself, but wanted to know the ‘absolute truth’, whereupon Gilles brought the exchange to an abrupt end with a bare assurance that, ‘Truly, there was no other cause, no other end nor intention.’ Even de l’Hôpital was ultimately sufficiently impressed to grant his prisoner the privilege of a mere toasting, but he seems to have been struggling with ideas that are now as common as they were then inchoate: that defendants can reliably reveal their motivations, and that guilt should be measured by their willingness to do so.

The exchange also exemplifies another feature of the modern trial: the way in which it attempts to reconcile those being judged with those doing the judging, and the extent to which that attempt is so often doomed. No matter how much a criminal may want to explain, a court long to understand, and a grieving relative hope for resolution, the gap in most serious cases is all but unbridgeable. The most obvious reason is that no crime can be undone, but another is that no explanation can ever adequately pin down why one person breaks the rules and another does not. The excuses most commonly heard today – whether social deprivation, mental retardation, or pre-menstrual tension – are inherently no more plausible than Gilles’s claim that his murders were the fault of Satan, a wild childhood, and a predilection for mulled wine. Making the leap of imagination to empathize with a criminal is of course easy if one sympathizes with the crime concerned, but the mentality of someone who, say, dedicated a chapel to martyred children while slaughtering real ones is, for most people, about as unreachable as another mind can be. In such cases, the assessment that resonates truest to modern ears is one that Gilles gave long before his trial. He told a servant that he had been born under a star such that ‘nobody could know or understand the anomalies or illicit acts of which [I am] guilty’. And it explains nothing at all.

The concern to hear confessions was not the only feature of the Church’s battle against heresy that found permanent expression in the secular legal system of France. The country’s courts also became increasingly secret, just as the tribunals of the papal inquisitors had in the early thirteenth century. Inquisitorial judges opened their doors only when they were ready to present to the public the spectacle of a confessing defendant or, as happened rather more rarely, the mercy of the sovereign. By the close of the fifteenth century, they were interviewing witnesses in the absence of everyone but their clerks. Defendants meanwhile languished in custody except when it became necessary to confront them with their accusers or torture them; and defence lawyers, always rare, were formally excluded in 1539 from most stages of a trial, and absolutely barred in all capital cases after 1670.

Excluding the unlettered and the unwashed undoubtedly appealed to many lawyers then for the same reasons that secrecy still does to many people with power; but there was one notable critic. A judge from Angers called Pierre Ayrault, whose writings would influence generations of French lawyers, wrote a long work specifically on the topic in 1588, in which he complained that French justice had become like ‘a sacred mystery that is communicated only to the priest’. Its secrecy, which had been adopted out of ‘fear of the uproar, shouting and cheering that people ordinarily indulge in’, was a recipe for incompetence and error. Statements obtained during closed interrogations reflected the preconceptions of the legal official taking them rather than the meaning of the person being interviewed. Public trials, on the other hand, would serve to display the law at its most majestic. They would also make it more likely that a judge’s rulings were honest and reasoned.

The critique, developed at a time when political concepts like freedom of information and checks and balances still lay some distance in the future, was a perceptive one. The inquisitorial process, by concealing its officials from scrutiny, was inherently prone to corruption. The pernicious nature of the secrecy was, however, greater than Ayrault himself knew, for it could cloud the vision of even its greatest critic.

In August 1598, he was called upon to try a dishevelled and longhaired beggar in his mid-thirties called Jacques Roulet. Roulet had been handed into custody by one Symphorien Damon, whose statement set out how he had come to be arrested. Damon’s suspicions had been aroused when he saw the man lying on his stomach in a field for, upon being challenged, Roulet had stared at him malevolently and run away. He had seen him again shortly thereafter, alongside the mutilated body of a young boy and in the custody of four villagers. Everything else that Damon reported came from those four men; and if they ever testified, their evidence has been lost. He recounted how the peasants (one of whom was the dead child’s father) claimed to have chanced upon the body as it was being eaten by two wolves, and then to have spotted Roulet as they were chasing the beasts away. The coincidence had struck them as sinister, and their hunch was soon confirmed. Asked what he was doing, the beggar had said, ‘Not much’, but when they demanded that he reveal who had eaten the child, he had apparently confessed that he, his father, and his cousin had all been responsible. They had been wolves at the time. According to Damon, Roulet had even had long nails and bloody hands when arrested.

Attitudes towards lycanthropy in the late 1590s were in a state of flux. Although Christian scholars had insisted for centuries that werewolves were no more than an optical illusion – essentially because only God could turn humans into ravenous beasts and He had better things to do – the orthodoxy was under pressure. Lawyers, as usual, were at the forefront of the debate. The most eminent jurist in all France, Jean Bodin, had just written a witchcraft manual in which he argued that Satan did in fact enjoy the power to transform people into wolves. There is little reason to think that Ayrault subscribed to Bodin’s views, which were controversial even among his fellow demonologists, but the judge from Angers had a belief in the value of self-condemnation that was profound. In words that would be cited by French lawyers for the next two centuries, he wrote – in the same work that attacked his country’s legal secrecy – that the ultimate goal of criminal law was to ‘instil and engrave its fundamental principles on people’s hearts’. It was ‘not enough that wrongdoers be justly punished’ he insisted. ‘They must if possible judge and condemn themselves.’ And although he elsewhere warned that confessions could be false, he now put that credo into practice.

Ayrault began by asking Roulet to tell him what he had been accused of – a traditional if sneaky opening gambit among inquisitors – and Roulet replied that people thought him to be a villain. Ayrault specified that he wanted to know what he had been accused of at the time of his arrest, whereupon the beggar told him that he had committed an offence against God and that his parents had given him an ointment. When Ayrault hopefully asked if the potion turned him into a wolf Roulet denied it, but further prodding inspired him to admit that he had killed and eaten a child. He then confessed that he had, after all, been a wolf. Questioned in detail about his appearance at the time, he stated that his face and hands had been bloody, that he had had a wolf’s paws but a human head, and that he had attacked the boy with his teeth. Ayrault had heard enough. Whatever his attitude towards lycanthropy might have been, he certainly believed in murder. And having heard Roulet’s admissions, he now condemned him to death.

Records of the case give no indication why the sentence was not immediately carried out, but they show that the Paris court of appeal quashed the sentence of death three months later. Roulet was more foolish than evil, declared the parlement, and the best way to deal with him was to give him compulsory religious instruction in an asylum for two years. The basis for its decision is not set down, but any sixteenth-century court would have been even less likely than its modern counterpart to reprieve a self-confessed murderous cannibal unless absolutely sure of his innocence. Whether the beggar had been framed or simply fell victim to superstition, Ayrault had evidently got it wrong. He saw the risks of secrecy and untested evidence more clearly than anyone else in early modern France, but alone in his court, away from public scrutiny, his belief that prisoners should ‘judge and condemn themselves’ had led him to encourage a man’s delusions – and then to conclude that they were true.

The progress of inquisitorial procedures through German-speaking central Europe was more uneven than in France, but they would become just as dominant. The execution of the heir to the Hohenstaufen dynasty in 1268* saw the region dissolve into a collection of several hundred more or less independent towns and principalities however, and older rituals lingered in many areas long after they had disappeared in others. Some jurisdictions required, for example, that a murder victim’s corpse be borne into court by chanting relatives and assume formal responsibility for prosecuting its killers. A variation on the same theme saw the deceased’s hand severed and given to the defendant who, clad in a loincloth, would have to hold it and assert innocence three times. If the judge detected sufficient signs of discomfort, in either the defendant or the hand, guilt would be established.

Judgment in Germany also retained some notably eccentric features. Judges took their seats clutching unsheathed swords and, after proceedings had been called to order three times by a bailiff, the defendant would recite a confession or request an acquittal. It made no difference which. The judges were formally required to have already decided their verdict, and they would follow up the plea by unfurling and reciting a previously prepared decision. If they had elected to convict, the senior of them would snap his wand of office, toss it to his feet, and pronounce the condemned person’s doom. ‘Your life is over,’ he would roar, as a muffled church-bell tolled. ‘There is no place on this earth for you any more, and in breaking this wand I also break the tie between you and the human race. Only with God may you still find mercy. Woe upon you here! Woe! Woe!’ The clerk would add three more woes. So too would the bailiff. And when the woeing was over, the prisoner’s theoretical expulsion was made practical, as he or she was staked through the heart, burned on a stake, pulped with the rim of a large cartwheel, or strangled from a gallows.

The decentralization meant that German courts would be typified by a relatively freewheeling attitude towards legal technicalities. Far from mitigating the harshness of inquisitorial procedure, however, the flexibility generally made it even more deadly. German judges often enjoyed a particularly broad discretion to pursue obsessions, whether their own or those of their political masters, and all manner of blameless defendants would feel their wrath over the years. Some of the worst injustices came from one particularly dark corner of German jurisprudence: the Jewish ritual murder trial.

The myth that Jews were in the habit of slaughtering young Christians was not born in Germany. The allegation was first recorded in Norwich in 1144, and similar accusations sparked off bloody pogroms in England and France throughout the 1200s. It was only the wholesale expulsion of Jews from both countries (in 1290 and 1306 respectively) that pushed the epicentres of hatred towards Spain and central Europe. But fear and resentment spiralled as the refugees moved and, at a time when the courtroom was becoming the sharp end of political power, Germany’s inquisitors were soon ensuring that both lodged deep within the German body politic.

Their modus operandi is exemplified by a 1476 case that arose out of the Bishop of Regensburg’s discovery that a tortured Jew in Trent had confessed to murdering a Christian child in his diocese. He turned immediately to the local magistrates and in cahoots with the region’s duke, they swiftly itemized the property of the city’s richest Jews. Seventeen were arrested. Although the supposed victim was identified in only the vaguest terms, the judges then drew up a list of twenty-five questions that included the following:

Which Jews brought and purchased the child? Who tortured him? How much money did each Jew give to participate? What was the blood used for? How were the needles used? How were the pincers used? Why was a handkerchief tied around the child’s throat? How was the foreskin on the penis cut off and which Jews cut off the penis and what was done with it? Which Jewesses knew about this and what had they said?

The men, weighed down with stones, were raised and dropped by the rope of a strappado as each question was asked. Within two weeks, six had confessed to the imaginary murder.

The inquisitorial system could also create not just crimes, but entire superstitions. One of the most chilling cases of all, which is also the earliest to be fully recorded, illustrates the process with graphic clarity. In March 1470, workers restoring the charnel house of the small Black Forest town of Endingen reported the discovery of four skeletons, two of which were missing their skulls. It was just a month before Easter, never a high point for Judaeo–Christian harmony in the Middle Ages, and the presence of stray bones in the ossuary sparked panic. Someone recalled that, eight years before, Elias the Jew had sheltered a destitute family, and he and his two brothers were swiftly arrested and subjected to repeated sessions on the strappado. Within days, all had accepted not only that they had murdered the beggars, but also that they had beheaded two children and bathed in their blood.

The interrogations were recorded as they took place, and it is that of Mercklin, questioned after both his brothers had given in, which is the most haunting. He began defiantly, asking why he had to say anything at all if his interrogators already knew him to be guilty. They explained that they wanted to hear the truth from his mouth. Torture soon broke him, but after he confessed he was asked why he and his brothers had drained their victims’ blood. It was a question too far. He had no idea what his tormentors wanted him to say, and the desperation in his voice, as he trawled through their prejudices while the strappado was hoisted and released, echoes down the centuries.

To that he answered in many words, saying at first that Jews need Christian blood because it has great healing power. We would not be satisfied with this answer and told him that he was lying, that we knew why they need it because his brother Eberlin had told us already. To this Mercklin said that Jews need Christian blood for curing epilepsy. But we…would not be satisfied with the answer. Mercklin then said further that Jews need Christian blood for its taste because they themselves stink. But we would not be satisfied with the answer and told him that he was lying, and must tell us the truth, because his brother Eberlin told us a different story; now he must also tell us the truth. To this he answered badly that he wanted to tell us the truth, that he saw it cannot be otherwise…but that Jews need Christian blood [as a holy oil] for circumcision.

It was, at last, the answer that the magistrates wanted and, as was routine for capital offenders in early modern Germany, the brothers were stripped, wrapped in cowhides, dragged to the stake by their ankles, and burned alive.

The punishment was – in extremely relative terms – a mild one. A magistrate elsewhere in Germany might have compounded the humiliation by binding them in pigskin. If they had been thieves, they might have been made to wear hats filled with hot pitch before being hanged. One of the most unpleasant penalties was the one recorded in the adjoining woodcut – involving suspension by the heels between two hungry dogs. But even if the inquisitors of Endingen were not quite as brutal as they might have been, the process that had preceded the penalty was certainly inventive. For it did not so much reaffirm an existing superstition as conjure one into existence. Mercklin’s first answers had regurgitated myths that were common by the 1470s. The notion that human blood could cure epilepsy was so widely held that Germans, regardless of religious belief, would line up to drink thimblefuls of it at public beheadings – until well into the 1800s. The foetor judaicus had been troubling Christian nostrils for centuries, and Freiburg’s councillors had cited Jews’ murderous personal hygiene problems as a reason to expel them as far back as 1401. Mercklin’s final explanation seems, however, to have appeared in writing for the very first time at Endingen.

Quite where it came from is unknown. The focus on foreskins might conceivably have been inspired by Catherine of Siena, recently canonized on the strength of a dream that Christ had given her one, by way of a ring of flesh to wear on her finger.* Psychohistorians have, as might be imagined, come up with considerably more involved theories. But whatever the myth’s source, it would endure. The brothers’ confessions were quickly transmitted to other towns along the Rhine, and a link between circumcision and bloodlust very soon became part of the canon of German Judaeophobia. Within a month, four Jewish men in nearby Pforzheim were executed after confessing that they too had killed for the sake of their penises, and similar admissions were obtained six years later by inquisitors in Baden. An unknown writer then re-scripted the narratives into the Endinger Judenspiel, arguably the first trial dramatization of modern European history, which became wildly popular during the seventeenth century and would pack German auditoriums well into the nineteenth. Endingen, meanwhile, celebrated its victory over the eternal Jew by encasing the headless children in a glass cabinet in the town church, until one of its priests decided that their display was a source of shame rather than pride. He reached his conclusion in 1967.

The confidence in rationality that had swept across Europe during the eleventh and twelfth centuries had taken continental jurisprudence a long way. Reason had proved capable of bolstering the most visceral fears and building the most bloodthirsty conclusions. Inspired by a belief that justice was a matter of extracting answers to the right questions, lawyers had developed rules capable of condemning beggars as werewolves. In order to protect Christian children, Jewish prisoners had been identified as vampires. The law’s sturdiest logic could produce the purest fantasy – as was never more apparent than in the context of inquisitorial rules of proof.

The first systematic works on the question of evidence, written by lawyers from northern Italy during the fifteenth and sixteenth centuries, had warned judges that torture was permissible only if circumstantial evidence reached a certain threshold, characterized as a ‘half-proof’ or a ‘proximate indication’. The safeguard, always optimistic, very soon became illusory – because judges, rather than dispense with torture, simply expanded the range of half-proofs. By the 1590s, for example, a suspected thief could be tortured in most parts of Europe if he or she had been spending more than usual. Suspected witches could be tortured in early-seventeenth-century France if they avoided the gaze of their judge. And the rules about half-proofs were complemented by the notion of the ‘perfect proof’, whereby circumstantial evidence, when topped up by a confession, positively required a judge to convict. The logic was elaborate, but the effect was simple: arrest virtually guaranteed torture, which virtually guaranteed conviction.