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

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.