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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

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