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

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

‘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.