Saint-Méard’s guards tugged him to the centre of the room. Shadows leapt as defendant and judges peered at each other across a table littered with pipes, inkstands, and half-drained bottles of liquor. Why had he been arrested, demanded Maillard. Saint-Méard replied that he was thought, wrongly, to have edited a royalist newspaper. A single lie, snapped another voice, would mean instant death. If he was innocent, why had he been charged?
He had begun to reply when a priest was suddenly hauled into the room. A stupefied Saint-Méard watched as the cleric was bombarded with a flurry of questions, sentenced to death, and then pulled away, pleading for mercy. The judges invited him to continue. How could they be sure that documents he had handed up were not forgeries? Saint-Méard suggested, very hopefully, that they should adjourn his case while they checked – only to be interrupted again. A jailer, pale with fear, burst into the room to report that a prisoner was clambering up the chimney. Maillard warned grimly that if he made good his getaway, the turnkey would pay with his life. Everyone’s attention switched to the new drama, as pistols were fired up the flue and a heap of straw was lit in the fireplace. Only when the would-be fugitive dropped into the hearth – where, stunned and ablaze, he was beaten to death – did the trial resume. You have told us many times what you were not, noted one of the judges, but what is it that you are? Saint-Méard desperately replied that he was a patriot and explained that, far from plotting against the Revolution, he had considered it too timid. The claim, addressed to men who were diligently murdering in said Revolution’s name, was an audacious one. None of his judges looked convinced. Most appeared unmoved. Some seemed asleep. But their inscrutability masked one final surprise.
‘I am for granting him his liberty,’ declared Maillard. His fellow judges expressed their agreement, with joy rather than reluctance, and an astonished Saint-Méard was embraced by his jailers. And as he was escorted into the street between the torches of an honour guard, the mob that had just torn a man limb from limb parted to let him through, with cries of ‘Vive la nation!’
Saint-Méard’s experience was far from unique. Around one in seven of those at the Abbaye were spared, and the acquittals were repeatedly greeted with jubilation or tears from judges, guards, and citizenry alike. Historians have typically characterized the trials as shams but, understandable as that is, it raises an obvious question – who was being fooled? Saint-Méard struggled to believe that the proceedings were something more exalted and succeeded to the extent that his life was saved. His judges were partners as much as adversaries, from the moment that they asked him to explain his arrest to the point when they freed him. Far from deliberately performing the preamble to a murder, everyone was longing to enact a dream of liberty, equality, and fraternity. And the delusions created their own reality.
The law has become so closely associated with reasoned deliberation that it is sometimes hard to think of criminal trials as anything other than inquiries – but they have always performed a function that goes far beyond that of establishing who did what to whom. The first judges were priests, whose punishments were as sacrificial as they were penal, and the law has ever since asserted the power most proper to gods: the ability to rebalance a cosmos knocked out of kilter. Since the days of ancient Athens, there is no wrong that it has not somewhere claimed to right – even when no human defendant has been available to carry blame. In the courts of early modern Europe, creatures from beetles to bulls were regularly prosecuted, defended, and condemned at public expense. English juries for several centuries returned homicide verdicts against mischievous objects from haystacks to locomotives. Lawyers discovered new categories of criminal, from traitors to werewolves, whenever popular passion or private fear required. The long arm of the legal process even reached into the grave: for well over half a millennium, the bodies of dead criminals were brought into court to be accused by witnesses, defended by advocates and, if convicted, punished by the public executioner.
The cowls have metamorphosed into gowns and the incantations have turned to jargon, but ancient impulses still quiver around every courtroom. Rational concerns and logical argument typify any given case, but the terror of infanticide and Devil worship that once sent witches to their deaths was resurrected, in the form of satanic sexual abuse allegations, during the 1980s. Animals and corpses are no longer put on trial, but the urge to punish defendants regardless of their mental state lives on in prosecutions of children and the mentally ill. Perhaps the best example of the continuing faith in legal omnipotence comes from a case that never quite happened. In the spring of 1949, the first president of the Israeli Supreme Court, Moshe Smoira, received dozens of petitions from Christian clerics around the world. His country was less than a year old and had just fought off five Arab armies committed to its destruction, but the writers had few doubts about the urgency of their appeal – and none at all concerning the legitimacy of the Jewish state. Would he please, they asked, reopen the proceedings of the Sanhedrin and overturn the conviction of Jesus Christ?
This book quickened in 2000 in London, where I had been working for seven years as a criminal barrister. Almost a decade before, I had lived in post-revolutionary Prague and had then been struck by the extent to which many Czechoslovakians seemed to be blaming others to avoid tough questions about their own contributions to the communist era. I had vaguely wondered then if such thoughts might stretch into a book on scapegoats and soon decided that they would not. The weird dynamic of naming and shaming continued to interest me, however, as I represented villains both innocent and guilty, and by 2000 I was ready to try again. This time, I had a far clearer structure in mind. By writing a history of the criminal trial, stories rather than theories would drive the book forward.
Events elsewhere would further delineate its structure. Before Prague I had studied at Harvard and qualified for the New York Bar, and it seemed a sensible idea – or at least a pleasant one – to relocate to the United States. I reached New York in the summer of 2001. By mid August I was ensconced in a small studio with a splendid view over Manhattan’s financial district. Thus it was that on 11 September I watched from my windows as the towers of the World Trade Center burned and collapsed. Over subsequent weeks I wandered a city in mourning, personally unable to write and convinced that little was now of less significance to anything than an analysis of the criminal trial. I would spend another two and a half years in the United States and my mood would pass. But others, many of them in high places, were expressing similarly gloomy conclusions about the redundancy of the criminal process – and in their case, the trauma would have lasting effects. Over the next few months, a landscape familiar to me since law school seemed sometimes to be melting away. Several legal commentators were suggesting that the constitutional right to silence should be abolished. A Harvard law professor whom I had once respected proposed that it might be time to introduce a right to torture in its place. The administration of President George W. Bush, meanwhile, embarked on a policy of deeming entire categories of people, American and foreign, to be subject to indefinite detention without a right of access to courts, let alone a right to public trial.
Emergency powers have been invoked to combat terrible crimes since the days of heresy and witchcraft, and the fact that twenty-first-century commentators were readopting stances that inquisitors had abandoned in the eighteenth soon reassured me that a little historical perspective would not go amiss. But the aftermath of September 11 also sharpened the focus of my book. I had always anticipated that a central theme would be the conflict between reason and emotion – a tension that galvanizes any courtroom – but in the new climate a more fundamental aspect of that link came to the fore: why trials take place at all. For at the same time that hundreds of people were being accused without prosecution, official talk of justice – and even Infinite Justice – was reaching a crescendo. Governments are not the only component of a criminal justice system, but the reasons that they avoid courts increasingly came to seem at least as significant as the reasons that they resort to them. The relationship between secrecy, publicity, and transparency consequently became central to my book.
From the very outset, I chose not to conduct interviews. Contemporary topics such as capital punishment and the war on terror would have called for a range of views from participants ranging from defendants to judges. Anthropologists, sociologists and political scientists, not to mention historians and lawyers, might all have had other worthwhile things