Читать книгу The Trial: A History from Socrates to O. J. Simpson - Sadakat Kadri - Страница 7

‘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.

But all the cross-fertilization had a paradoxical effect. As lessons derived from the papal Inquisition fortified France’s royal courts the kingdom was becoming one of the most organized states in Europe, but the same process made those courts increasingly likely to tread on papal toes. Conflicts between kings and popes were nothing new, but at a time when national loyalties were strengthening, the personal rivalry was escalating into a struggle between Church and State. Thirteenth-century popes fought dirty – most spectacularly in 1268, when papal scheming resulted in the beheading of Conradin Hohenstaufen, the 15-year-old heir to the German Empire, whose death condemned Germany to five centuries of disunity – but in France the papacy would now meet its match. Its nemesis would be Louis IX’s grandson, Philip the Fair.

Philip, just seventeen when he assumed the French throne in 1285, dreamed as avidly as his grandfather of eradicating the infidel. Like Louis, he too had visions of a Christian realm that would stretch from Paris to Jerusalem. But a deep temperamental difference distinguished the two men. Whereas Louis had placed both body and country at the service of the pope, Philip saw the Holy See as an obstacle to his ambitions rather than the inspiration for them. It was an attitude that always boded ill for relations between Paris and Rome, and at the end of 1294, the route to Christian harmony became rocky indeed. For the king who would be pope found himself confronted by a pope who would be king – Pope Boniface VIII.

Boniface was a worldly man, as pontiffs go. His fondness for the ladies was such that he married one and fathered another; while his affection for the men was so notorious that rumours of pederasty would follow him far beyond the grave. He assumed the papacy only after encouraging his predecessor, Celestine V, to resign – whereupon he installed the 81-year-old hermit, who had not wanted the job in the first place, into an oubliette to die. He was never going to take kindly to a whippersnapper like Philip, and the tensions began rising almost immediately. The French king, whose realm constantly teetered on the brink of bankruptcy, had begun to extort money from the country’s monasteries in order to finance a war with England, and in 1296 Boniface ordained that monarchs who taxed clerics and clerics who paid up were ipso facto excommunicated. The bull was meant as a shot across the bows and was reversed a year and a half later, but Boniface followed up by elevating Louis IX into St Louis, canonizing a French king for the first and last time in Christian history. Recognition of the grandfather was no honour to the grandson – and it was not meant to be.

Battle was about to begin – and the weapons of choice would be legal ones. Canonical law of the late thirteenth century was still Church property, its mysteries guarded by monks and arbitrated by bishops, and Boniface was regarded by many, not least himself, as the finest jurist of the age. Allegiances across Europe were switching from papacy to nation, however, and under the patronage of Philip, France’s lawyers were emerging as a distinct and powerful social class. The effect was that whereas Louis had borrowed the legal tools developed by the Church, Philip deployed them – and his target was the Holy See itself.

Skirmishes began when he sent Guillaume de Nogaret, the most trusted of all his legists, to attend a jubilee that Boniface held at Rome in 1300. Nogaret, a man of humble and possibly heretical origins who had several anti-papal chips on his shoulder, would prove himself a worthy champion. According to his own account, he took Boniface aside as soon as he arrived and warned him, sotto voce, that his simony and extortion – along, presumably, with several more or less unmentionable vices – had to stop for the sake of the Church’s good name. An outraged Boniface had challenged Nogaret to repeat his words before witnesses which, on the Frenchman’s own proud recollection, he promptly did. Philip himself increased tensions in the following year. Eager to reassert French control over the Languedoc, he had one of its key bishops charged with sexual and spiritual offences – and to compound the insult, informed Boniface that he had been driven to act because the cleric had defamed the pontiff by calling him Satan incarnate. Boniface returned fire with a bull in 1302, in which he ‘declare[d], announce[d] and define[d]’ that any ‘human creature’ who refused to submit to papal authority could expect to spend all eternity in hell. Lest there remain doubt about which human creature he meant, he then let it be known that his French ambassador was instructed to excommunicate the French king.

The thunder hung potential throughout the summer of 1303. Aware that a final conflict might be looming, Philip’s lawyers drew up an indictment against Boniface in June, packed with every charge that their hostile, fertile minds could generate – from diabolism and sodomy to materialism and the neglect of fasts. Boniface thereupon drafted a formal document of excommunication. If published, it would have released Catholics everywhere to perpetrate treason and war on the French monarch at their pleasure. But against the power to damn a man till the crack of doom, Philip possessed a weapon that was hardly less potent: Guillaume de Nogaret.

Boniface’s bull was due to be nailed to the doors of the cathedral at Anagni, a small hill town where he maintained a sumptuous palace, on 8 September. It was early on the morning of the seventh that Nogaret arrived. He was carrying his indictment – and was accompanied by 1300 men. As bells rang and dogs barked, the invaders stormed through the narrow alleys, but it was not until dusk that the heavy oak doors of Boniface’s inner chamber were finally broken down. A certain degree of confusion has come to surround the events that immediately followed. Some say that Boniface was found atop his throne in vestment, crucifix and triple-tiered tiara, defiant and ready to die for the honour of his office. Others suggest he was trembling like a human jelly. All agree, however, that Nogaret eventually strode through the splintered door to inform him that, having failed to mend his sodomitic ways, he was required to attend at Lyons for trial.

Boniface in fact survived to be escorted by his allies back to Rome, but the shock was all too much. The man who had once asserted supremacy over the entire human race shrank into a wraith and lived for just five more weeks. He died in his sleep, crumpled like a foetus with both fists in his mouth. Pursuant to legal theories that will be considered more closely in Chapter 5, Philip thereupon campaigned to have his body put on trial and burned at the stake.

The conflict exemplified by the struggle between Philip and Boniface would recur across western Europe. As inquisitorial methods were adopted by secular rulers, those rulers seized control of the system from its creators. Christianity and canonical law would continue to influence continental legal systems until the late eighteenth century, but kings and princes would already have gained the upper hand over papal inquisitors by the fifteenth. The fact that legal procedures were secularized would not, however, make them any more humane. Just as monks and canonists had redefined the law to pursue the Church’s war in the early 1200s, secular lawyers would reinvent it on behalf of their masters to justify use of the rack, the thumbscrew, and the strappado for centuries.

The question of evidence would generate some of the most inventive theories of all. In an era of trials by ordeal and compurgation there had been no need to consider how something should be proved, since the defining event – a miracle or the swearing of sufficient oaths – either took place or it did not. The rediscovery of Justinian’s Digest in the late eleventh century had, however, shown Europe’s lawyers that the Romans had differentiated between proofs and the verdict, and as witnesses entered the scene following the abolition of ordeals, the status of their testimony began to trouble the canonists. The primary problem was that, despite the rationalist aspirations of the age, no one possessed any systematic theory of how contradictory statements were to be weighed up. The Digest’s various recommendations – that judges pay heed to a witness’s social standing and manner of speech, for example – did not take matters very far. When lawyers then turned to chapters 17 and 19 of the Book of Deuteronomy – which required allegations to be proved by two respectable eyewitnesses – a new problem arose. Since the Bible said nothing about how to differentiate truth from lies, judges interpreted the two-witness rule literally. If two people swore to a fact, it was proved – conclusively. The injustice of that was apparent to many people even in the formality-obsessed thirteenth century, and dissatisfaction increased as inquisitors tried applying the rules to heresy. Eyewitnesses to disbelief were necessarily hard to find, and the most threatening heretics were in any event those who kept themselves to themselves. Proving their thought-crimes would require a theory more imaginative than one that depended on eyewitnesses.

The answer to the riddle would be the confession. Admissions have since become so routine a feature of Western criminal justice that it is hard to appreciate just how radical a shift took place during the mid thirteenth century, but the nature of that shift is well illustrated by Louis IX’s laws for southern France. Aware of the deficiencies of the two-witness rule, the king had ordered his judges never to convict on such evidence unless it was backed up by a confession. He was, however, as perturbed by wrongful acquittals as wrongful convictions – and he simultaneously allowed those judges to torture defendants who had aroused suspicion but refused to provide the confession that would be needed to convict them. The law that claimed to protect against unreliable convictions consequently became their primary cause. Within decades the confession was being promoted from a subordinate form of evidence to the regina probationum – ‘the queen of proofs’ – and self-condemnation would soon come to be revered as an almost immaculate guarantor of guilt.

The concept of the regina probationum owed nothing but its Latin to Roman law. It was also alien to the Old Testament – so much so that Maimonides, the foremost Talmudic scholar of the medieval world, declared conviction on the basis of a bare confession to be contrary to divine law. Confessions came to be exalted not because of ancient traditions, but because of seismic changes: a new confidence among political rulers that they could know their subjects’ secrets, and a new morality that was beginning to measure people’s culpability according to the words they uttered.

The tectonic movement occurred on a timescale that is better measured in generations than moments; but if a single occurrence could be identified as pivotal, it would be the Fourth Lateran Council of 1215. In the same set of canons that brought ordeals to an end, Pope Innocent III had commanded that all Catholics annually confess their sins on oath to a priest. The cleric was simultaneously empowered to forgive those who observed the obligation, while those who failed to do so were made liable to excommunication and unhallowed burial. It was a major change. Church thinkers had long agreed that salvation demanded contrition and many had even claimed for the Church a power to forgive sin. No one, however, had ever presumed to suggest that Christians had to verbalize their remorse to be saved – let alone that they had to do so in the presence of a priest.

Innocent’s innovation inspired considerable resistance among ordinary Catholics, and over the next few decades concerted efforts were made to persuade the flock that confession was in their interests. Gregory IX formally advised all doctors to recommend it to their patients, and chroniclers were soon extolling the new sacrament’s benefits. The most influential was a Cistercian monk called Caesarius of Heisterbach whose Dialogue of Miracles, written in the 1220s, would inform popular Christianity for centuries. Four of its twelve chapters were devoted to confessions, and they suggested that their power was prodigious indeed. A popular legend doing the rounds told how St Norbert had exorcized someone of a demon that insisted on revealing the adulteries of everyone around it, but Caesarius now turned the story on its head: he knew of one that had buttoned up simply because the adulterer concerned had confessed. Another fiend had positively lied to protect a girl’s reputation for chastity, so impressed was it by her decision to divulge her sexual history to a priest. Caesarius told of confessions so timely that they had saved vessels from sinking and rendered murderers fireproof even as the flames of their execution pyres were lapping around them. One ancient demon of which he had heard had been so awestruck by the aura of salvation emanating from the confession box that it had insisted on admitting every misdemeanour it had committed since tumbling out of heaven alongside Lucifer. Silence or equivocation, on the other hand, invariably attracted the attentions of less benign apparitions and might even inspire visits from the undead. The message was clear. Blabbing worked wonders, but verbal retention could end in disaster.

There are weighty philosophical arguments to support the belief that expressing responsibilities might lessen them. The insistence on verbalization has always risked robbing speech of its meaning however, and thirteenth-century jurists were soon treating confessions as symbols of guilt rather than methods of establishing facts. The canonical principle that defendants should not be compelled to condemn themselves was watered down to mean only that a forced confession had to be recited in court. It meanwhile became established that torture could be repeated three times. One Dominican inquisitor called Nicolas Eymeric argued in the late fourteenth century that each of the three sessions could itself be ‘continued’ indefinitely. By 1705, one lawyer would be basing his critique of torture on the magnificently metaphysical grounds that justice, like nature, abhorred infinity. Those who managed, despite everything, to hold out, were treated not as innocents but as culprits who had cheated justice, and were typically sent into exile or deprived of an ear on the basis that they deserved punishment for falling under suspicion in the first place. Jean Bouteiller, a jurist of the late 1300s, expressed the prevailing attitude when he advised that a suspect should only ever be released ‘conditionally’ because otherwise ‘it would seem that he had been held prisoner without cause’. His colleagues were evidently of a similar mind. The country’s first trial records, which detail more than a hundred cases from Paris between 1389 and 1392, show an overwhelming majority of defendants confessing and not a single one winning an outright acquittal.

Few trials better capture the shifting meaning of spoken guilt in early modern Europe than the 1440 prosecution of Gilles de Rais. Gilles, born in 1404 as heir to the fortune of three of the wealthiest families of France, enjoyed a youth that seemed charmed indeed for the troubled fifteenth century. At a time when his country was convulsed by a seemingly perpetual war and its nobility torn between those who supported the territorial claims of the English monarchy and the aspirations of the Dauphin, Charles VII, he gambled for high stakes – and won. In May 1429, fighting shoulder to shoulder alongside Joan of Arc, he helped achieve the victory at Orléans that turned the tide of the Hundred Years War. The triumph allowed the French pretender to be crowned at Reims Cathedral, the site of every previous coronation in French history, and his gratitude knew no bounds. Gilles was invited to carry the amphora of anointing oil – no insignificant honour, given that it had supposedly descended to earth on the wings of a heavenly dove – and Charles VII, weeping copiously, concluded the day by appointing him a Marshal of France. At the age of 24, Gilles had reached the top of the tree. The perennial curse of the early achiever is, of course, that all paths from the treetop go down. Even Gilles could hardly have guessed how far he would fall.

Whatever the passions that drove the young hero, they were soon taking him somewhere far from the battlefield. Gilles increasingly neglected his martial duties in favour of the priesthood, and with the war’s end in 1435 he endowed a chapel at his Brittany castle of Machecoul – complete with choir, portable organ, and a chapter of clerics outfitted in fur-lined silk and scarlet – and decided to reenact his most magnificent triumph as theatre in Orléans. It was a glittering train of some two hundred choristers, jugglers, pipers, fire-eaters, and astrologers that now snaked across the countryside – but a shadow was sweeping alongside. For as it moved, children vanished in its wake. Some were last seen taking the hand of rosy-cheeked crones. Others climbed onto strangers’ horses, never to be seen again. And Gilles was enjoying the road show so much that he turned it into a rolling tour.

Over the next few years, the darkness fell deepest around the gloomy towers and brackish moats of Machecoul, and never more so than in 1437, when two small skeletons were found inside the castle. Rumours were soon rife. Some claimed that Gilles was kidnapping youths to sell to the English. Others whispered that he was writing a book of spells with human blood. A few may even have begun to wonder why he had chosen to dedicate his chapel to the Holy Innocents – the infants slaughtered in their cradles by King Herod.

Such matters might ordinarily have come to nothing. Scurrilous tittletattle about the misfortunes of a few under-age peasants was never likely to touch the reputation of a nobleman in fifteenth-century France. The talk of diabolism was a little more risky, coming at a time when Europe’s witch-hunts were warming up, but invocation of demons still remained a popular hobby among French aristocrats. A discreet lord would have had nothing to fear. But discretion had never been Gilles’s strong suit – and incontinence would prove to be his downfall.

As he had traveled, staging miracle plays and mysteries and keeping his choirboys supplied with chalices, censers and pyxes, he had churned his way through the fortune that three bloodlines had taken centuries to accumulate. And in May 1440, hubris finally met nemesis. Having recently sold one of his last properties, a fortress at St-Étienne-de-Mermorte, to a certain Geoffrey le Ferron, he decided that he wanted it back. At the head of a posse, he stormed into its church brandishing a double-headed poleaxe and forced its priest – who was also le Ferron’s brother – to open the castle gates, before tossing him into its dungeon. It is hard to imagine an act of gratuitous violence that would have been better calculated to bring Gilles’s impunity to an end. Invasion of a church violated ancient privileges of the Bishop of Nantes. Geoffrey le Ferron was no mere castellan but treasurer to the Duke of Brittany. The duke was the only man below the French king to whom Gilles owed fealty, and was thus entitled to confiscate what remained of his vassal’s wealth if he was convicted of a felony. Gilles had finally found a mark to overstep.

By the early fifteenth century, the papal–national conflict had been unequivocally resolved in favour of secular rulers in France, and the bishopric of Nantes would now work loyally alongside the Duke of Brittany’s officers. Proceedings were launched in the episcopal court, and covert inquiries produced a secret report in late July. One and a half months later, ducal officers arrested Gilles along with two servants and two priests. Four days after that, on 19 September 1440, he was escorted into the great hall of Nantes Castle to be told that he faced charges of heresy. Gilles had doubtless come to terms with the fact that abducting a priest at poleaxe-point was going to require some penance, but when he was brought back to court almost three weeks later it became clear that the term ‘heresy’ covered a multitude of sins. Alongside sundry acts of impiety, apostasy, and sacrilege, the indictment alleged that he had made pacts with demons, and that he had sodomized and murdered some 140 children.

Gilles seems to have been unable quite to believe that the court was presuming to judge him for such trifles. He haughtily insisted on appealing, and when the judges told him that the request was frivolous, and ought to have been in writing anyway, he fell into a monstrous sulk. Even when the prosecutor swore four times to the truth of his indictment, he refused to speak. Five days later, the displeasure had hardened. Spitting invective at the bench, Gilles condemned his judges as ‘simoniacs and ribalds’ and announced that he would rather hang from a rope than plead to their charges. In the face of such defiance, they deployed the most powerful sanction at their disposal. They excommunicated him.

The judges knew their quarry. When Gilles reappeared two days later he was in tears, begging forgiveness for having questioned their right to try him and pleading for readmission to the Church. The clerics duly re-embraced him to the Church’s bosom, but made sure simultaneously to have him watch his servants and priests being sworn, in preparation for secret interrogations that were to take place over the next few days. The pressures on Gilles were mounting; but when the indictment was read aloud, he seemed strangely disengaged. He admitted borrowing a book that explained how demons might be persuaded to transmute base metals into gold, but made a point of insisting that he had returned it to its owner. He had employed several alchemists to freeze quicksilver, he accepted, but he was anxious to assert that he had neither invoked evil spirits nor made sacrifices to them. Of lost children, he spoke not a word.

The members of Gilles’s household were then interviewed – very probably, under torture – and, five days later, their statements were read to him. All described acts of diabolism and murder in chilling detail, and Gilles declined to challenge any of the evidence – but the court remained unsatisfied. It duly ordered that he be interrogated on the rack ‘in order to shed light on and more thoroughly scrutinize the truth’. Gilles, allowed a night to consider his position, decided that that would not be necessary. On the following afternoon, he made a full confession in his cell to four judges and the prosecutor, and was made to repeat it a day later in a packed courtroom. It was an extraordinary performance.

He began by asking that his words be published not just in Latin but also in French, in order that as many people as possible could learn from his mistakes. He implored his listeners to raise their children with good manners and virtuous habits, because he had been undone by an unbridled childhood. And he then confessed to the abduction and murder of ‘so many children that he could not determine with certitude the number’ in terms that, even six centuries distant, retain their power to appal. Alongside his servants and other companions, he had throttled his victims and hanged them from hooks, sodomized them and ‘ejaculated spermatic seed in the most culpable fashion on [their] bellies…as much after their deaths as during it’. He had stabbed and battered them, decapitating some, and while they were in their last throes, he had often ‘sat on their bellies and…laughed at them’. Once dead, he had ‘embraced them…contemplating those who had the most beautiful heads and members’, and had then torn open their bodies to ‘[delight] at the sight of their internal organs’.

Having dealt with the question of dead children, Gilles turned to diabolism – a subject on which he seems to have spent about four times as long – and admitted that he had often hired magicians to invoke demons. All were evidently con artists, warning him off at crucial moments and sometimes beating themselves up in locked rooms to prove the risks they were running, but although their dishonesty had eluded Gilles, his participation had been far from passive. He had once used blood from his little finger to write to a demon, he recalled. On another occasion, he had given a magician the hand, heart, and eyes of a young boy in a jar.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The diversity of German law meant that its procedures became particularly convoluted. The region’s princes notionally owed loyalty to a ruler whom they elected, and during the sixteenth century a law was enacted by Emperor Charles V that sought to minimize arbitrariness by establishing ground rules that would apply in every German state. The 1532 code, known as the Carolina, permitted each one to maintain its customary laws however, and it aimed only at ensuring that there were ‘legally sufficient’ grounds for torture – with the consequence that it spread inquisitorial lunacies as much as it suppressed them. It advised judges, for example, that torture was permissible if a suspect was ‘insolent and wanton’, or in possession of an item similar to something found at the crime scene. Inquisitors soon got the point, and began developing rules of their own. By the seventeenth century, an unnatural pallor was sufficient to justify torture for several crimes in Frankfurt-am-Main. Suspected adulterers were imperilled simply by being found in an attractive woman’s house – unless the culprit was a cleric, in which case he could be caught in a clinch and the court would presume that he had been ministering to her spiritual needs.

The code also advised inquisitors to seek confessions even where eyewitness testimony and circumstantial evidence were already overwhelming. Prisoners who withdrew admissions on the scaffold might therefore be rushed back to the rack, on the theory that a miscarriage of justice would otherwise ensue. And although the Carolina had been based on a Bamberg statute that pronounced it ‘better to acquit a guilty person than to condemn an innocent one to death’, at least some lawyers took a very different view. Fynes Moryson, an Englishman touring Europe in the late sixteenth century, reported that he had met several who justified deaths through torture with ‘a strange, yet good, saying…namely that it is better one innocent man should dye by triall, then many [guilty] persons should escape for want of [it]’.

It was in eighteenth-century France – a society in which many began to believe that human wisdom was not just improvable but perfectible – that the faith in reason reached its apogee. The spirit of the age was well expressed by the work of an influential jurist called Pierre François Muyart de Vouglans, whose textbooks portrayed French criminal procedure as an almost mathematically precise tool for the discovery of truth. Since crimes were effectively puzzles waiting to be solved, it was positively unjust to hold back when detaining a suspect. ‘The welfare of humanity demands that crime should not remain unpunished,’ he explained. ‘It is for that reason that, in the absence of other means of arriving at [a] complete proof, we are obliged to torture the body of the accused.’ That said, the absence of such proof was no bar to punishment. It had been established in 1670 that anyone who refused to confess was liable to any penalty short of death, and Muyart de Vouglans now explained why: anyone liable for torture was already more than ‘half-convicted’ and deserved a suitably proportioned punishment. If someone’s refusal to confess made a death sentence inappropriate, a judge might, for example, send him to the galleys for life instead. The flexibility of such a system, adjusting the penalty to fit the amount of evidence, represented for Muyart de Vouglans the acme of judicial sophistication. ‘By means of these augmentations and moderations of Penalties,’ he declared, ‘our Jurisprudence has reached a degree of perfection which distinguishes it among civilized Nations.’

Enlightenment rationalism did, however, have a more benign aspect. Previous assumptions about punishment and crime were called into question, and in an age when political philosophers were arguing for the first time that the exercise of power demanded public scrutiny, systematic criticism of the inquisitorial system also began to be heard. The greatest single impetus came in 1764, when an Italian called Cesare Beccaria published a powerful attack on the cruel, arbitrary, and brutal nature of European criminal justice – including a damning critique of the continental reliance on torture – that would define the terms of debate in Europe and America for decades.

Muyart de Vouglans was moved to publish a refutation, but many others were persuaded by Beccaria’s argument – among them, a judge called François Serpillon whose own textbook, published at Lyons three years later, contained another condemnation of torture – all the more persuasive because Serpillon had inflicted it. He reported that the custom in his hometown of Autun was to strip suspects, bind them to a table, and then question them for two hours while their legs were crushed between boards and slowly scalded with twelve pints of boiling oil. He had been present at interrogations twice – once only as a witness, but once (‘compelled’ by the evidence) as the torturer – and neither occasion had ended happily. The good news for the men being questioned was that both had been released following their refusals to confess. The bad news was that the legs of the first suspect had caught fire, necessitating amputation, while the second defendant had been so badly burned that the bones of his toes had had to be removed with pincers.

Another critic of the inquisitorial system, equally vociferous but considerably less compromised by its operation than Serpillon, was Voltaire, who campaigned against its inhumanity for a lifetime, but eloquently damned it with just a few lines in a 1766 commentary on Beccaria’s work. He reported that the inquisitors of Toulouse used not only half-proofs but also quarters and eighths, and came to their decisions by adding them up. A piece of hearsay amounted to a quarter-proof, while an even vaguer rumour might count for an eighth. The result was that eight doubts could constitute a perfect proof and send a man to his death.

Notwithstanding the pride of lawyers like Muyart de Vouglans, the entire edifice of inquisitorial procedure was already tottering by the time that Voltaire wrote his critique. Several European governments abolished torture during the late eighteenth century, and after 1780 even French courts permitted its use only to identify accomplices after conviction. The revolution that began at the Paris Bastille nine years later then saw the system collapse. Within two years, France’s trials had become public and adversarial, defendants had won guarantees against not just torture but oaths, and the power to investigate crimes was at last detached from the duty to judge them.

Enduring reform then came under Napoleon, who enacted a law code in 1808 that would be adopted across Europe and continues to underpin criminal justice systems on the continent today. Although judges can still conduct pre-trial investigations in secret, and dominate courts to an extent that echoes their former role, the malignity of the inquisition is now very much a thing of the past. Later chapters will show that the dangers of unaccountability and torture live on, but those risks are not the relics of any particular legal culture. Abolition of the inquisitorial system did, however, owe much to a very specific rival tradition. For the progressives who campaigned to bring it down modelled their proposals for reform on a criminal process that actually existed on the other side of the English Channel – the jury trial.