LITMIR.BIZ

Скачать книгу

had deliberately held back from destroying its residents with the breath of His nostrils in order that the crusaders could earn salvation by exterminating them personally – but no Catholic of his intelligence trusted in the sword alone. The Church needed a procedure that could detect the canker before it took hold, and that was a question of law rather than war. Innocent was never likely to think highly of trials that entitled his priests to extort several shillings for boiling a kettle, and having studied law at Bologna and theology at Paris, he would probably have been aware of Peter the Chanter’s theoretical critiques of trial by ordeal. But the most decisive argument was almost certainly a pragmatic one. A suspected heretic would escape punishment if acquitted. Innocent was too hard-nosed a pope to leave the future of his Church to the vagaries of divine intervention.

      The papal interest in reform was already evident. Innocent had previously curtailed the use of compurgation in Church disciplinary cases, and in 1199, had approved a novel way of proceeding in criminal cases – per inquisitionem. The new technique entitled judges, in suitably clear cases, to launch inquiries of their own motion. That was, pointed out the pontiff, no more than God had done at Sodom and Gomorrah. The reform was a sign of things to come – and they came at the Fourth Lateran Council of November 1215.

      The Council, which lasted three weeks, was an assembly of about four hundred bishops and over a thousand abbots, ambassadors, priors, and proxies from every country in the Catholic world. It was one of the grandest gatherings that Europe had ever seen, a fiesta of fireworks and parades so raucous that more than a few visiting pilgrims were trampled to death. But amidst all the excitement, Innocent remained firmly in control. Seventy reforms were presented to the delegates, for approval rather than debate, and they left few abuses unaddressed. As part of a crackdown on clerical misbehaviour, priests were forbidden from throwing dice, watching clowns, and wearing pointy-toed shoes. Princes were instructed to make Muslims and Jews wear unusual clothes, because too many Christians had been having sex with them and then claiming not to have noticed the difference. Every Catholic was required to make confession at least once a year, on pain of excommunication and burial in unhallowed ground. And tucked away in the package was Canon 18, which prohibited priests from blessing ordeals by water and fire. On 30 November, Innocent exposed a chunk of the True Cross for the delegates’ adoration and sent them home. It would take several years for the reforms to percolate through the continent, but the deed had been done. Since ordeals could not occur without priestly participation, European criminal justice had been transformed for ever.

      

      A thought-provoking way of appreciating the significance of 1215 is offered by Lewis Carroll’s Alice’s Adventures in Wonderland. As any once well-read child will recall, the tale concludes with a trial at which the Knave of Hearts is accused of stealing the Queen’s tarts on a summer’s day and making good his escape. After witnesses testify that jam tarts are made of pepper and accuse the Knave of failing to sign a poem that he did not write, the proceedings culminate in a moment of high drama. The Red Queen, responding to her husband’s suggestion that the jurors consider their verdict, splenetically insists that he has it backwards. ‘Sentence first –,’ she screams, ‘verdict afterwards!’ The merest infant knows that she is in fact the one who is wrong; Alice herself is so exasperated by the illogic that she brings down the house of cards, and wakes from Wonderland to boot. But there are many times and places where the distinction between sentence and verdict has been far less clear.

      Wrongdoing in non-Western cultures has often been tackled by rituals that have assumed guilt as much as they have investigated it. Among nineteenth-century Angolans, to take just one example, the fact that a woman was eaten by an alligator while her two companions survived could be regarded as a sure sign of sorcery, and a hearing might be held simply to establish which of the survivors had worked the magic. The pre-modern Western world blurred the distinction between investigation and verdict even more comprehensively. Ordeals and compurgation combined them into a single ritual that operated as much to discover if a wrong had occurred as to establish a suspect’s responsibility for it. The idea of distinguishing the two issues was so alien to Dark Age thinking that lawyers had not even possessed a term to describe the process of weighing up evidence: the only one in use was probatio, or proof. But in the mid 1200s the word triatio entered the legal vocabulary of Christian Europe for the first time. Whereas the Dark Ages had tackled mischief with magic, through pleadings that clashed like mighty spells and rites that unlocked the secret will of God, the Western world had recovered the option of holding an inquiry.

      The new faith in human scrutiny would also encourage tremendously significant developments in the field of moral philosophy, and few thinkers were more seminal than a pensive fellow called Anselm, sometime Archbishop of Canterbury. In the 1090s, he set to wondering why God had thought it important to manifest Himself in human form. As his inquiries proceeded, he found himself puzzled how it was that humanity could be absolved for murdering Jesus – for although crucifying the Messiah seemed a conclusively evil thing to do, Jesus himself had asked that his killers be forgiven. Anselm, committed like any good eleventhcentury scholar to the principle that there was a reason for everything, pondered the text until he realized that the answer was staring him in the face. Christ himself had argued from the cross that his killers deserved mercy ‘for they know not what they do’. Although the plea is a reminder that God the Father had regularly exhibited a more draconian stance, the insight set great chains of reasoning rattling through Anselm’s mind. ‘Had they known it, they would never have crucified the Lord’, he mused, before explaining that, ‘A sin knowingly committed and a sin done ignorantly are so different that an evil…may be pardonable when done in ignorance.’

      The belief that people deserved condemnation only if they understood what they were doing was not new. Adam and Eve had established the moral relevance of knowledge, and peoples from the Babylonians onwards had taken the view that intentional wrongs were at least sometimes more enormous than accidental ones. Coming at the end of the Dark Ages, Anselm’s distinction between sins deliberate and ignorant was, however, a radical reassertion of the importance of choice. Thinkers around the continent would soon follow his lead, and the consequences would be far-reaching. Theologians would build on it to develop a concept known as the canonical theory of culpability, which held that guilt depended on a sinner’s state of mind. Lawyers would then argue on the same basis that justice demanded not just an inquiry, but one that could establish what a person thought.

      All the changes, like Innocent III’s abandonment of fire and water ordeals, were the product of a tide rather than a tsunami, and their impact on Europe’s judicial systems would be correspondingly gradual. Compurgation would linger for several hundred more years as a way of resolving some civil disputes. The belief that God watched over criminal justice would see suspected witches swum in water four centuries after 1215, while trial by battle remained a legal option in England until 1819. The ordeal of the bier, whereby accused murderers touched their supposed victims and faced condemnation if the corpse bled anew, was arguably most tenacious of all. It was last seen in 1869, when two hundred people were paraded past two bodies in Lebanon, Illinois, in the hope that the cadavers – or, perhaps, the killer’s own sense of guilt – would identify the murderer.

      The response to Innocent’s ruling would, however, be both profound and permanent. As Chapter 3 will show, judges on the small island of Britain would simply adapt the old oath-taking rituals and make jurors out of conjurors. On the continent the revival of rationalism and Roman law would lead to root-and-branch renewal of the law. Innocent III had already approved a ruthless model for judicial reform, based on God’s activities at Sodom and Gomorrah. The once imponderable power to judge right and wrong was being arrogated on behalf of lawyers, on the assumption that sufficiently rigorous intellectual inquiry would produce both truth and justice. In an age when evidence and intention were becoming increasingly important, those lawyers would formulate techniques capable of examining not only what people had done, but also what they had thought. Defendants had been tormented by conscience at least since the time of Socrates, but the idea that judges too could explore the secrets of the criminal heart represented an unprecedented extension of official power. The Inquisition was dawning.

       2

Скачать книгу