Читать книгу The Trial: A History from Socrates to O. J. Simpson - Sadakat Kadri - Страница 6

It is only our conception of time that makes us call the Last Judgment by that name; in fact it is a permanent court-martial.

FRANZ KAFKA, Aphorisms

One of the few things that humanity has agreed upon for most of history is that its laws descend directly from the gods. The oldest complete legal code yet discovered, inscribed onto a black cone by the Babylonians almost four thousand years ago, shows Shamash, god of the sun, enthroned and handing down his edicts to a reverential King Hammurabi. Jehovah reportedly did much the same thing a few centuries later, carving ten commandments onto two tablets with His own finger as Moses stood by on fiery Mount Sinai. Coincidentally or otherwise, it was said of Crete’s King Minos that he climbed Mount Olympus every nine years to receive legal advice from Zeus. Ancient cultures were equally certain that the power to adjudicate breaches of the law rested ultimately in the hands of the gods. The methods of enforcement were often as terrible as they were mysterious – ranging from bolts of lightning to visitations of boils – but the justice of the punishments was as unquestionable as the law that they honoured.

And yet, for all the insistence that heavenly laws were cast in stone and divine judgments unerring, one question always caused turmoil – namely to whom, down on earth, had the right to judge been delegated? The priests who veiled their various scrolls and statutes invariably argued that only they could interpret their secrets, backing up the claim with further revelations as and when required. Monarchs were no less assertive, and constantly sought to interfere with the religious mysteries of justice. Some even argued that the power lay elsewhere. Among the Hebrews, for example, an old tradition prescribed that homicides should be tried by common people, and although Judah’s priests established something close to a theocracy after 722 BC, their oldest myth of all characterized the ability to tell good from evil as every human being’s birthright. The story of the Fall was not, admittedly, a ringing endorsement of the power to judge – Adam and Eve had, after all, paid for their apple with sorrow, sweat, and death – but it was certainly a start.

The Athenians would produce a considerably more robust illustration of humanity’s inherent sense of justice: Aeschylus’ Oresteia, the oldest known courtroom drama in history. The trilogy, first performed in 458 BC, retells the ancient myth of Orestes, scion of the royal house of Atreus – a bloodline as polluted as any that has managed to perpetuate itself on this earth. The corruption had set in when its founding father Tantalus chose, for imponderably mythic reasons, to slaughter his son, boil the body, and serve it up as soup to the gods. Aggrieved Olympians condemned him to an eternity of tantalization, food and drink forever just out of reach, and resolved to visit folly, blindness and pride on his offspring for evermore. Family fortunes began a rapid decline, and by the time that Tantalus’ great-great-grandson Orestes reached adulthood, its history of rape, incest, cannibalism, and murder had generated a degree of domestic dysfunction that was pathological even by the standards of Greek mythology.

The play opens with news that Agamemnon, commander of the Greek armies and father of Orestes, has just triumphed at the Trojan Wars. But all is not well. Victory was purchased through the sacrifice of his own daughter, Iphigeneia, and he has abducted Cassandra, the beautiful child of Troy’s King Priam, to have as his concubine. His wife, Clytemnestra, has meanwhile taken a lover of her own and sworn to avenge Iphigeneia. When Agamemnon returns to the marital home, as oblivious to the obvious as every tragic protagonist should be, the tension mounts. Cassandra waits at the gates while he enters its portals – and the princess, cursed to know the future but powerless to change it, sees horror ahead. Hopping and screeching on the palace eaves are the Furies, supernatural guardians of cosmic propriety, and throbbing deep within are visions of anguish: torn wombs, a soil that streams blood, a bath swirling red…and Agamemnon, dead. ‘I know that odour,’ intones Cassandra, as she steps up to the threshold. ‘I smell the open grave.’ Screams engulf her, and the first act closes with Clytemnestra exulting over the bodies of her husband and his prize, a bloody knife in her right hand. Her work, she proclaims, is a masterpiece of justice.

It all leaves Orestes in a pickle. On the one hand, he loves his mother. On the other, he is honour-bound to slaughter her. Urged on by a crazed Chorus, he makes his way to the family palace, where he first cuts down her lover. He then forces Clytemnestra to gaze on the body. Pleading for her life, so desperate that she bares the breasts that once suckled him, she begs her son to accept that destiny played as much of a role in Agamemnon’s demise as her dagger. Orestes is torn between the claim of vengeance and the tie of affection, and the drama pivots on a moment of hesitation – before it tips. ‘This too,’ retorts Orestes, ‘destiny is handing you your death.’ He hurls his mother to the floor and makes her embrace her lover’s corpse, before running her through with his sword. The sated Chorus re-gathers to pronounce that the family’s misfortunes have come to an end. Resolution remains an act away, however, and Orestes has of course won no more than his turn to bear the ancestral curse. As it settles, stifling, on his shoulders, he sees the serpent-haired Furies swarming to take revenge and even the Chorus finally begins to waver. ‘Where will it end?’ its members wail, ‘where will it sink to sleep and rest, this murderous hate, this fury?’

Aeschylus’ answer comes in the final part of the trilogy. Shadowed by his mother’s supernatural avengers, Orestes seeks refuge at Apollo’s oracle at Delphi. Apollo, god of justice and healing, reassures him that he did the right thing, but advises him nevertheless to seek the protection of wise Pallas Athena. Orestes duly makes his way to her hilltop citadel on the Areopagus of Athens. The owl-eyed goddess is rather more equivocal. There are arguments both ways, she points out, and even she cannot resolve a conflict between right and right. Her solution is simple. She will summon ten Athenian citizens, bind them by oath, and make them decide.

The substance of the argument that ensues is less significant than its outcome – for although the jury splits evenly, Athena casts her vote for Orestes and is so impressed by her innovation that she prescribes its use in all future homicide cases. Athens, she pronounces, stands on the verge of unprecedented peace and tranquillity. Only the Furies remain unconvinced, hissing with repulsion at the thought of harmony, but even they are quieted by Athena’s assurance that they will have an honoured place in her new court. Their venom has been drawn – and the snake-headed hags, optimistically renamed the Kindly Ones, close the play at the head of a torchlit procession through their blessed city.

Aeschylus intended his work as a celebration of Athens in particular and human potential in general. When it was first performed in 458 BC, some two centuries after the scattered farms and fishing villages of the Attican peninsula had first begun to coalesce, the city was at its zenith. It had just seen off would-be invaders from Persia and transformed itself into a regional superpower, while political reforms were entrusting its male citizens with rights of participation and personal freedom never before seen in the ancient world. In a spirit epitomized by a famous assertion by a thinker called Protagoras that ‘man is the measure of all things’, its poets and philosophers were busily blazing trails that still dazzle more than two millennia later. Aeschylus’ brilliance manifested itself in a series of plays, and it was epitomized in the Oresteia. Whereas Homer had simply paid homage to Orestes as a righteous avenger, and Euripides would later resolve his anguish by having him acquitted before twelve gods, the playwright’s perspective was as radical as it was optimistic. Human honesty, he ventured, might be as sure a guide to the mysteries of justice as the most divine of oracles.

Straightforward though that message appears, it is easy to overrationalize it. Aeschylus’ faith was reflected by reality, in that legal reforms had just transferred the power to judge serious crimes from state officials to ordinary Athenian men, but the ritual that he revered was no fact-finding inquiry. There had been no uncertainty about what Orestes had done: he had deliberately murdered his mother, who had just done the same to his father. And just as the jurors were not convened to find facts, the defendant was not cleared because evidence proved his innocence: he was cleansed of guilt because they decided – by the barest of majorities, tipped by the casting vote of a goddess – that he was not blameworthy. Nor was vengeance removed from the process. Honouring the family by repaying wrongs done to it was still seen as part and parcel of the natural order, and any fifth-century Athenian would have regarded forgiveness as cowardly at best and accursed at worst. Aeschylus had made sure to give the Furies a dignified place in Pallas Athena’s court, and the clinching argument that the goddess used to secure their cooperation was a reminder that they had won the votes of half of the jurors. In his play, as in life, vengeance was being idealized and institutionalized, but it was certainly not being abolished.

Aeschylus’ stance reflected a tension between two ideas about justice that were always at odds with each other in the ancient world. One assumption, that people were at fault only if they had done evil deliberately, was almost as common in fifth-century Athens as it is today. However, there also existed another, more visceral, belief – that some deeds demanded punishment regardless of the perpetrator’s intention, if the rage of the gods was to be forestalled. The view was notoriously prevalent among the ancient Hebrews, who enumerated an entire catalogue of unforgivable abominations, from sodomy to sex with mothers-in-law,^* and used scapegoats and turtledoves to bear away the burden of countless lesser sins. In Greece itself, some three centuries before Aeschylus was born, the poems of a farmer called Hesiod had proposed that entire cities could suffer because of one man’s misdeeds. About three decades after the playwright died Sophocles would retell the notorious tragedy of King Oedipus, whose unwitting seduction and slaughter of his mother and father respectively brought shame and pestilence onto his realm. And fifth-century Athenians did not just write about such matters; they regularly visited suffering on a minority to cleanse the majority. An annual festival called the Ostracism allowed Athenian men to banish a fellow citizen by vote, and although they often did so for practical reasons, the ritual was widely seen as a way of ridding the body politic of contamination. Athens, like other Greek cities, also maintained a stock of human scapegoats known as the pharmakoi – comprising its poorest, lamest, and ugliest inhabitants – whose function was to be feasted and venerated at public expense, until famine or plague struck. They would then be dragged from their thrones and paraded about to the clatter of pans and the squeal of pipes, before being hounded out of the city gates under a hail of stones.

Trials themselves could operate to shift blame as well as discover it – as the Athenians also appreciated. Every midsummer up to the third century ad, they held a festival known as the bouphonia, at which an axe-wielding official would, after sacrificing an ox, discard his weapon and flee the scene. Someone would then flay the beast, and all present would eat the meat, re-stitch the hide, stuff the carcass with straw, and yoke it to a plough – at which point, a trial was convened to establish who, in the absence of the actual killer, was guilty of its death. Accusations were levelled first at the women who had brought the water to whet the blades. They would accuse the sharpeners. Those men, questioned in turn, would blame the people who had taken the axe and the knife from them to the slaughter. The messengers would accuse the carver, who laid one final charge. The true shame, he would argue, lay with his blade. And there the buck would stop. For when the knife damned itself by its silence, the axe was formally acquitted and the guilty weapon was hurled into the sea.

Although the modern mind tends to picture Greek courtrooms as sunbleached temples to debate and deliberation, a similar tension between reason and unreason characterized the rituals that were used to resolve actual crimes in fifth-century Athens. Freemen had gained the right to judge – which they would exercise not in groups of ten, but in assemblies of up to a thousand and one – but while they were building a fizzing, babbling democracy, seventy silent per cent of the adult population remained legal nonentities. Women were permitted to litigate only through guardians, while slaves could not even give evidence except under torture, on the strength of a theory that they were constitutionally incapable of telling the truth unless subjected to great pain.

Trials for homicide, a touchstone of the social order in any close-knit community, were not just affected by superstition but founded on it. It was commonly believed that killers exuded the miasma, a vapour so abhorrent to the gods that the slightest whiff could incite them to rage, so despicable that those around whom it clung were barred from temples, games, and marketplace – and so persistent that only a trial could dispel it. The origins of the miasma are as misty as those of any myth but its existence in fifth-century Athens was a firmly established sociological fact. Murder trials were held outdoors to minimize the risk of infection, and at least one defendant relied on its reality to prove his innocence, pointing out to his judges that he had recently sailed in a ship that had not sunk. Killers sometimes attended court to purge themselves even when there was no one to prosecute them – as might happen if the deceased was a legal cipher like a slave – and one Athenian tribunal, the prytaneion, was dedicated to nothing but the prosecution of killer beasts and murderous objects.^* Defendants who had been exiled for one murder but wanted to cleanse themselves of a second charge were tried in the most prudent court of all. It convened at a stretch of Athenian shoreline called the Phreatto where the accused addressed his judges from a boat, which bobbed offshore at a suitably circumspect distance.

The superstition played an important role in anchoring the criminal trial in Athenian society. It sharpened the only choice open to most defendants in the ancient world – whether to undergo a trial or enter exile – and at a time when predators human and bestial roamed the countryside, those accused had every reason to take their chances in court. It simultaneously made it more likely that accusers would prosecute, for the miasma was also thought to linger around anyone who failed to obtain vengeance. And as it became established that prosecutions were as valid a form of revenge as any other, the premium that was placed throughout the ancient world on life behind a city’s walls also generated its own moral basis for the exercise of judicial power. The law codes of Israel and Judah instructed municipal officials to grant sanctuary to killers only if they agreed to stand trial, and in Athens, where idealization of the city ran especially deep, it became established that judgments were binding, whether right or wrong. A willingness to take complaints to court and abide by judicial rulings became, literally, the civilized thing to do.

No ancient trial better illuminates the development than the most famous one of them all: the prosecution of Socrates, charged in 399 BC with having invented new spiritual beings and corrupted Athenian youth. The 70-year-old was a metropolitan fixture at the time of his prosecution: an ugly, acerbic and provocative philosopher who had spent decades haranguing hecklers and debating passers-by on the nature of the universe. Through a series of historical accidents, the accusations have entered popular history as the persecution of a sage, condemned by a city that could not bear to hear some harsh truths about itself. The assessment obscures considerably more than it illuminates.

It stems from the eyewitness reports of just two men – Socrates’ pupil, Plato, and an acquaintance called Xenophon – and neither is a reliable narrator. Plato produced the more comprehensive account, but the future philosophical colossus, then a mere prodigy of 28, omitted to record much of the crucially important political background to the case. Assumptions of style and relevance undoubtedly played some part in that, but so too did the fact that Plato idolized his teacher and was concerned throughout to portray him in the purest light. One effect has been to consolidate an enduring popular myth that the charges were more irrational than they were. Another has been to blur one of the most important aspects of the trial. Plato’s account leaves no doubt that the prosecution pitted the community against the individual, but its outcome illustrated how Socrates was bound to Athens as much as it showed his ability to stand up against it.

The Athens that put Socrates on trial was a shadow of the city that Aeschylus had glorified half a century before. Three decades of war with Sparta, its militaristic rival, had recently come to an end. The Spartans had vanquished the Athenian navy and then reduced the city’s starving population to unconditional surrender before destroying its fleet and demolishing its walls. The physical collapse was rapidly followed by political disintegration. A despotically inclined citizen called Critias had established a collaborationist oligarchy known as the Thirty, and for eight months Athens became a police state, terrorized by bands of dagger- and whip-wielding thugs who daily murdered opponents of the new dispensation. Around fifteen hundred people were summarily executed – almost as many as had died over the previous ten years of war – before the terror came to an end in 403 BC. The restored democracy declared an amnesty for political offences in the interests of peace – but plenty of Athenians remained eager to settle accounts.

Socrates was among those who paid, heavily, but he was not chosen at random. No one has ever been entirely sure what ideas he expounded, because he wrote nothing and owes his philosophical footprint to Plato; but among the tenets later attributed to him were a number that chimed neatly with those of the oligarchs. They included a belief that wise individuals could gain insights into absolute truths – a claim that was well suited to those who subscribed to the ‘rule of the best’, or aristokratia, and who pointed out that democracy could guarantee neither wisdom nor justice. It is also known that Socrates was not only an indirect inspiration to the enemies of democracy. He had taught several men closely associated with the Thirty – one of whom was none other than Plato, connected to the aristocrats by a web of social and family connections. Another was a second cousin to Plato – Critias himself. As if that did not make the old man suspect enough, he was widely known to admire Sparta, a fact so notorious that the playwright Aristophanes had mocked him for it throughout his comedy, The Clouds.

None of the smears had much substance. Whatever Critias may have taken away from his lessons with Socrates, the older man remained sufficiently independent to disobey an order to arrest an innocent man during Critias’ time in power. The single-mindedness of Spartan society certainly appealed to the philosopher in Socrates, very likely because he saw in its rigour a triumph of the human will. The totalitarian shadow of such beliefs is now apparent, but it could not have been to Socrates, and his admiration for Sparta seems to have resembled the rose-tinted feelings that some twentieth-century intellectuals once harboured towards the Soviet Union – symptomatic of idealistic impatience rather than venomous treachery. His ideological flirtations did not, in any event, stop him serving Athens loyally during the war, both as a civic officer and as a soldier.

There is little doubt, however, that the capital charges against Socrates, though framed in moral and religious terms to get round the amnesty for political offences, were effectively ones of treason. Although Plato chose not to record the speeches of the three accusers, the allegation was that he had lent aid and comfort to Athens’ enemies at a time of war.

Plato’s account of Socrates’ trial portrays the older man as a model of integrity, as determined to expose the weaknesses of the case against him as he was resolute not to save himself through flattery. In his record, the snowy-curled philosopher, standing before 501 fellow citizens, began with the traditionally disingenuous plea of the seasoned orator – an apology for his inarticulacy – before launching into a speech that honoured nothing but the truth. He opened by telling his listeners that the oracle of Apollo at Delphi – the source of wisdom visited by, among others, Orestes in the Oresteia – had identified him as the wisest person alive. Although initially puzzled, he had come to realize why – for he more than anyone else appreciated the limits of his own knowledge. The charges against him were however nonsense. They accused him of teaching young people to believe in new gods, and he had never done that. It was true that a spirit whispered in his ear, but it was a travesty to call that spirit a god. Its voice simply told him to speak plainly and ask awkward questions, and although such behaviour had made him unpopular, he would not stop even if acquitted. He was like a horsefly on the lazy beast of Athens. His judges would spare him if they were sensible, but he suspected that they would sleepily swat him down instead.

Despite the uncertainty over what Socrates taught, it has always been known how he taught it – essentially by prodding his listeners to conclusions that theoretically represented truths that they already knew – and there can be no better demonstration of the technique than the performance recorded by Plato. Some people find the speech moving, while others consider it the preaching of a prig; but whatever the best way to characterize Socrates’ defiance (and Xenophon claims that he simply wanted to die) it won him few friends. He inspired such hostility that he had to ask for silence several times, and although shouting, clapping and booing were common at Athenian trials, when the judges voted, by dropping pebbles into earthenware jars, about 280 of the 501 were for conviction.

Athenian law required that Socrates propose his own sentence, but his response to conviction was to become even less conciliatory. Xenophon recorded that he refused to suggest anything. Plato has him telling the judges that what he most deserved was maintenance at state expense for the rest of his life, dismissing exile with the explanation that the judges were too likely to impose it if he proposed it, and finally condescending to pay a derisory fine. The old man’s supporters swiftly multiplied his offer thirtyfold, but the damage was done. When the ballots were counted, at least eighty of those who had supported his acquittal were now voting for his death. Still Socrates remained undaunted. He would not weep or wail to save himself. He looked forward to meeting the immortals. ‘Now it is time that we were going, I to die and you to live,’ he concluded. ‘Which of us has the happier prospect is unknown to anyone but God.’

Plato’s record, for all its bias, must be largely accurate – not least because his contemporaries would otherwise have written spirited corrections – but Socrates was not condemned simply because he was too honest to deny his genius. The city had just imploded after the most bitter war in its history, eviscerated by a Sparta that he idealized, and those judging him would almost all have been touched by the brutality of the Thirty. When he claimed exalted insights and spoke of a spirit that whispered into his ear, they would have recalled that his wisdom had been taught to traitors. To many of those who heard him, he was neither a harmless crank, nor a seeker after truth. He was an accessory to mass murder.

But the conflict between Socrates and the state would have an unexpected ending. After spending a month in his condemned cell, considerably more jolly than his morose acolytes, he was visited by a pupil called Crito who told him that an escape had been organized. Socrates, however, refused to countenance the idea. He had voluntarily attended his trial instead of exiling himself, he reminded his old friend, and he invited him to contemplate what the laws of Athens would think about the proposal if they were able to speak. As far as Socrates was concerned, they would be horrified. ‘Do you imagine that a city can continue to exist and not be turned upside down,’ they would ask, ‘if the legal judgments which are pronounced in it have no force but are nullified and destroyed by private persons?’ Socrates owed it to the city to stay. It was only through its laws that his parents had been able to marry each other and that he and his children had received their education. He had no more right to undermine an Athenian law that was being wrongly enforced than he would have had to retaliate against his father or his employer.

The willingness to yield to judgment after so steadfast a defence was remarkable enough, but Socrates would now bow even lower. For he did not simply submit to punishment – he carried it out. Athenian law allowed some capital offenders to purchase poison from the state, and Socrates did so. Plato records that he drained his glass in one gulp while disciples wept uncontrollably, and took his leave of life by asking Crito to sacrifice a cock to the god of healing. The pain was over. ‘Such…was the end of our comrade,’ observed Plato, ‘the bravest…wisest and most upright man [of our time].’

As such remarks incessantly remind the reader, Plato was writing in large part to tell Athenians that their verdict had been an awful mistake, but the significance of his account can hardly be overstated. The arguments that he put into Socrates’ mouth, idealizing the law while condemning those who misapplied it, would reverberate down the centuries. They would give birth to the notion that rules can be trusted even when humans cannot, inspiring ideals like the rule of law and the notion that some rights are inalienable. They would have a darker side, underpinning the authoritarian vision of a state that knows best and civil liberties that are always contingent. The record also showed, for the first time, how trials can enforce judgment by turning defendants against themselves. It was a development that would be seen time and again, whenever communal values and political institutions grew sufficiently strong to harness the force of the individual conscience. Its significance was summarized by Sigmund Freud in an image that bears repetition, even if the psychoanalytical theories underlying it might not. ‘Civilization,’ he wrote, ‘obtains mastery over the individual’s dangerous desire for aggression by weakening and disarming it and by setting up an agency within him to watch over it, like a garrison in a conquered city.’

The conventional bridge from Athens to the modern world is the civilization that conquered Greece in 200 BC – Rome. By then, the Republic had a legal culture that was already some three centuries old and its jurists were on the way to developing complex rules of contractual and property law, but its notions of criminal justice would never become quite as sophisticated. Spectacular treason and conspiracy trials would punctuate Roman history, but they were as political as they were principled: an opportunity for ambitious Romans to rally their supporters, display their power or publicly turn the tables on their rivals through a successful prosecution or defence. As in Athens, citizens facing a capital charge had the choice of departure or submission – required either to exile themselves, or attend court unwashed, unshaven, and in shabby mourning dress – but such ritualism rarely stretched to soldiers and never touched the cases of slaves. Roman law had originated in priestly mysteries just as holy as those of any other culture, but justice in the empire was a tool rather than an ideal, wielded by magistrates whose role was to police an empire rather than to honour a tradition.

The most distinctive feature of Roman penal laws was, unsuprisingly, not the trials they mandated but the punishments they prescribed. Prisoners of war and those convicted of murder, arson, or sacrilege might be executed at the arena – burned alive as a warm-up act, or offered as fodder to hungry beasts while the gladiators took a breather. The most notorious prosecution in Roman history is accordingly remembered not for the perfunctory ritual of condemnation but for the horrors that were reportedly inflicted subsequently: whether Jesus was convicted by the Sanhedrin or Pontius Pilate pales into insignificance against his scourging, whipping, and crucifixion. Other penalties made his fate look almost mild. A debtor, after sixty days in prison, was punishable by execution or enslavement at the election of his creditor – and if the insolvent owed money to more than one person, the plaintiffs could adjust their losses (among other things) by collectively tearing him apart limb from limb. Most rococo of all was the punishment imposed on those who killed a parent. The parricide was beaten with rods until blood was drawn, and then drowned in a sack with a dog, cock, monkey and snake, or some writhing permutation thereof.

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.

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.

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.