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

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,* 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,* 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.