CRIMINAL PROCEDURE IN THE HOLY ROMAN EMPIRE IN EARLY MODERN TIMES

Author(s): Bernd Roeck

Source: IAHCCJ Bulletin , Printemps/Spring 1993, No. 18, Poursuites Pénales /
Prosecution (Printemps/Spring 1993), pp. 21-40
Published by: Librairie Droz

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 CRIMINAL PROCEDURE
IN THE HOLY ROMAN EMPIRE
IN EARLY MODERN TIMES
by Bernd Roeck *

Any Empire attempt

Empireis boundisat summarising
bound to to bebe
fraught criminal withwith
fraught procedure difficulties. in the And
difficulties. And Holy above
above Romanall,
all,
because of the political structure : the Empire was fragmented into more-
or-less independent territories and cities with different legal traditions,
different « constitutional » status within the imperial confederation (for
instance concerning the privileges of appellation and evocation or the
possession of high jurisdiction). This had consequences for the accep-
tance and even for the knowledge of the fundamental legal norms. The
reception of Roman law, for example, took place at different rates and,
compared with other countries, resulted in very heterogeneous struc-
tures. Although the fundamental legal norms are well known and have
been thoroughly studied - in particular the Constitutio Criminalis Carolina
(CCC)- passed in 1532 by the Regensburg Imperial Diet - the extent
to which they were accepted and applied is much less clear. We are
still far from having an overview on this question, as Michael Kunze noti-
ced in 1984 (Kunze, 1984, 177). It is therefore not easy to describe
« typical » procedure in Germany. I would like to attempt first of all a
brief summary of the general normative principles of early modern cri-
minal proceedings - on the basis of the Carolina - and, second, to
give an example which will elucidate the discrepancies between norm
and reality. It must be kept in mind, however, that it is not certain that
this case is « typical ». Only further comparable cases will enable us
to establish characteristic structures.

The passing of the epoch-making Constitutio Criminalis Carolina has

to be seen in the context of the crisis besetting the Empire in the fif-
teenth and sixteenth centuries, which resulted in a rise in crime due to

*. University of Bonn.

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 CRIMINAL PROCEDURE IN THE HOLY ROMAN EMPIRE

changing social and economic structures1. In reaction, even befo

sixteenth century, new forms of criminal procedures evolved, esp
in cities, anticipating what was to come : the older, strict statut
system of proof fell into disuse, new practices emerged intended t
dite procedures - especially the increased use of torture. Attempt
establish new procedural regulations to channel this development
to be interpreted in the context of the efforts to reform the Em
the late fifteenth, early sixteenth centuries (Angermeier, 1984). It bec
urgent to integrate the principles of Roman law, which were ar
from Italy, into new corpora of law - a problem which of course
cerned not only the Holy Roman Empire. Complaints arose even
the Supreme Imperial Court (Reichskammergericht), which had bee
ganised in 1495, that the authorities « had sentenced people to d
and executed them without law and sincere cause ». Apparently, com-
plaints like these eventually initiated the reform of criminal justice in the
Empire - which is an indication of how numerous and intense they must
have been (summarising Schmidt 1965, 107 sq. ; Kohler/Koehne, 1915).

The introduction of new procedural forms into former practice, and

in particular the adoption of Roman legal concepts, can already be seen
in the Wormser Reformation of 1498 (Schmidt, 1965, 123-125) ; this
reform distinguishes two kinds of criminal prosecution : procedure on
the grounds of a private party complaint, on the one hand, and, on the
other, official institution of proceedings by mayor and council. Like the
trial by indictment of the Reform of Worms, which was adapted to the
common law civil suit that emerged in the course of the adoption of
Roman law (ibid., 123), trial by inquisition also followed Roman law :
a clear distinction is made between the basis of the verdict and the pre-
conditions ior torture ; the basis of the verdict results from the evidence
of all facts relevant for perpetration and guilt. A list of examples explains
when torture is appropriate. Eberhard Schmidt concludes (ibid., 125) :

So the Reform of Worms shows a completely new style. And all adop-
ted innovations merge in the tendency to give form, shape, in a word :
order to the trial by inquisition. With the aid of norms which regulate
the use of official power according to rational principles, channel the
judicial discretion sensibly and check arbitrariness and lack of expe-

1. On the Carolina : Landau & Schroeder (1984) ; Schroeder (1986), both with recent
literature ; see also : Kleinheyer (1975, 110-125) ; Leiser (1975, 1977, 96 sq.) ; still
fundamental is Radbruch (1961). A comprehensive bibliography to all problems mentio-
ned here must mention the richly illustrated work of Wolfgang Schild (1985, 236 sq.).

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 B. ROECK

rience, procedural forms are created which are to serve truth and jus-
tice.

Around 1 500, it might seem as if the reform of criminal law was ini-
tiated from above, by Emperor and Empire ; the Reichsregiment and the
Reichskammergericht , the supreme imperial court dominated by the esta-
tes, suggested themselves as organs of reform.

II

The failure of the imperial reform redirected events, however. The most
important, epochal initiative by far originated from a regional basis. This
was the Bambergische Halsgerichtsordnung (Constitutio Criminalis Bam-
bergensis) of 1507 [cf. Leiser (1977) ; Schroeder (1986) and the fun-
damental Kohler/Scheel (1900-1915)]. It found its way into legislation
and legal practice in many places. In 1509, it was published by Ulrich
Tengler as part of the Laienspiegel, the most important guideline for
subordinate courts. Later, it was adopted in Ansbach, Bayreuth and,
de facto, by the Berlin Schöppenstuhl. Its author, Johann Freiherr zu
Schwarzenberg und Hohenlandseck, participated in Imperial Diet attempts
to institute the Constitutio Criminalis Bambergensis as the imperial legal
norm in Worms in 1521. Initially, these efforts met with no success.
Cities and princes were anxious to preserve their special status and tra-
dition. They were not prepared to give up their rough and cruel criminal
justice. Compared with the usual practices in criminal proceedings, the
Bambergensis would have moderated and rationalised many aspects,
but it would also have prolonged trials. So it was a crucial prerequisite
for the acceptance of the principles of the Constitutio Criminalis Bam-
bergensis that reservations were added. At the Augsburg Imperial Diet
of 1 530, it became evident that arrests in cities and territories were
carried out hastily and heedlessly, that courts and sovereigns made free
with the delinquents' possessions, in short that material interest pre-
vailed over justice.

The now generally binding Halsgerichtsordnung (which dealt with capi-

tal offences), passed in 1532 by Regensburg Imperial Diet (cf. the lite-
rature in note 1), better known as the Constitutio Criminalis Carolina
(CCC), is unlikely to have had an immediate effect on this situation, as
the wording of the preamble suggests :

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 CRIMINAL PROCEDURE IN THE HOLY ROMAN EMPIRE

Doch wollen wir durch diese gnedige erinnerung Churfürsten, F

ten und Stenden, an jren alten wohlhergebrachten rechtmessigen
billichen gebreuchen nichts genommen haben. (But we do not w
to take away any of the old, traditional, justified and fair custom
Electors, princes, and estates) (Radbruch 1961).

The context leaves no doubt that reference to territorial or local law

was still to be the exception ; the Carolina - based, as already men-
tioned, on Johann von Schwarzenberg's Bambergensis - was to remain
the legal norm until the end of the old Empire. Without going into too
much detail, I would just like to point out that it was the legal norms
of the individual states which circumvented it - especially in the major
territories (Bavaria, for example, the Codex Juris Bavarici of 1751, the
Prussian criminal law of Friedrich Wilhelm I of 1715 or the Constitutio
Criminalis - or « Nemesis » - Theresiana of 1768) [Cf. Christi (1975) ;
Schmidt (1980, 343 ff)].

Ill

I would now like to outline the major regulations of the Carolina which
determined criminal procedure.

The law provides for procedures according to the traditional « medie-

val » principle of indictment as well as for the forward-looking principle
of inquisition. In this context it has to be remembered that the transi-
tion from the principle of indictment to the principle of inquisition, in
the sphere of German culture, was not a linear process without breaks
or setbacks (cf. Schmidt, 1980 : passim). A look at the development
in the late Middle Ages is instructive enough. One particularly interes-
ting and quite mysterious example is Zurich, then still a part of the Empire
[cf. Burghartz, (1990, 64-66) here and for the following figures as well].
In the second half of the fourteenth century, the number of cases (43 %
of all recorded cases) initiated by the council itself ( Nachgang ) was appa-
rently considerably higher than at the end of the fifteenth century (15 %).
Taking into account that, by the middle of the thirteenth century, the
council was obliged to punish breaches of the peace, it becomes obvious
that the large share of such Nachgänge in the fourteenth century should
be interpreted as the expression of the - older - movement for peace
(Friedensbewegung) rather than a forerunner of « modern » disciplinary
tendencies or as a vestige of the Roman trial by inquisition (ibid., 66).
The proportion of convictions was, after all, much higher at the end of

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 B. ROECK

the fifteenth century than in the fourteenth (79 % compared to 45 %)

(ibid.).

Similar observations have been made about the free imperial city of
Nuremberg [Leiser (1971, 172 ff) ; Knapp (1896)]. Here, a Halsgericht
acted as supreme criminal court ; it consisted of the municipal judge
( Stadtrichter ) and 13 jurors (Schöffen). The court of five (Fünfergericht
or Hadergericht) was competent for lesser criminal cases. The procee-
dings of these courts are likely to have been styled after the Carolina
and the Bambergensis. But already in the fourteenth century, much earlier
than these law codices, trial by inquisition had found its way into legal
proceedings.

The private suit remained the normal way to institute legal procee-
dings in the Carolina, but « private » here includes accusation by a state-
appointed prosecutor (which did not become decisive for the further
development in Germany : the modern public prosecutor does not go
back to the « accusor ex officio », the Fiskal , but was established around
the middle of the nineteenth century) (Radbruch, 1961, 15). The Caro-
lina was decisive for the development of trial by inquisition in the Empire,
although this form of instituting legal proceedings is only mentioned in
a few passages (CCC, art. 6-10). The private suit was probably sup-
planted mainly because of the considerable bail with which the Caro-
lina burdens the prosecuting party - in extreme cases, it even deman-
ded that a penniless plaintiff be remanded in custody just as the delin-
quent was. At the very least, he is forced to provide bondsmen. The
trial, however, soon turned into a trial by inquisition, because it became
officially pursued by the state or city.

It was of importance that the Carolina organised these proceedings

according to precise rules, largely modelled after the Roman-Italian school
of law. It made the trial as well as the combating of crime a state res-
ponsibility. There were no longer three participants - plaintiff, accu-
sed and judge - who determined the procedure, but only two : judge
and accused.

The accused is left defenceless and at the mercy of a judicial prose-

cutor vested with omnipotence. From subject of the trial, who is there
primarily to defend himself, he is reduced to an object of the procee-
dings, mainly destined to provide incriminatory evidence against him-
self (ibid., 16).

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 CRIMINAL PROCEDURE IN THE HOLY ROMAN EMPIRE

While this represents a disadvantage of the trial by inquisition

Carolina defines it, its law of proof , on the other hand, is forwa
king. The old kinds of evidence (ordeal, purgation oaths) have disap-
peared (cf. Kleinheyer 1984, 17, 21 ff). Again, comparison with late
fifteenth-century conditions, as the example of Zurich reveals, is ins-
tructive. Here, conjurators, as we meet them in the old purgation oath,
have disappeared by 1380 - in three quarters of the cases between
1376-1385 analysed by Susanna Burghartz, we find testimonial evi-
dence. If an oath was sworn as a form of evidence, no sentence was
pronounced in 75 % of the cases ! (Burghartz, 1990, 68).

The Carolina fosters a tendency to reject the oath as evidence. Rational

practices are advanced instead. But the burden of proof lies with the
accused, he has to prove his innocence (it is remarkable, though, that
the Carolina does not tie murder to the traditional criterion of « stealth »,
but already recognises intent as the feature that distinguishes it from
manslaughter) (CCC, art. 130 ff).

IV

An accused can be sentenced only if he makes a credible confession

or if he is convicted by at least two genügsame Zeugen , eyewitnesses,
who have actually seen the deed and who do not know of it merely
« by hearsay » (CCC, art. 22,67). The witnesses must have a good repu-
tation. There must not be any legitimate reason to reject them (CCC,
art. 66). If one of these requirements is not met, the accused cannot
be sentenced unless circumstantial evidence can be offered. But even
successful circumstantial evidence did not obviate a confession, an
at this point could torture be used (although this procedural requirem
was often enough ignored in practice, as the history of the witch trials
readily proves).

If torture is used without reasonable grounds for suspicion, a confes-

sion thus extorted is invalid (CCC, art. 18-20) ; the law requires that
the evidence be thoroughly examined and that facts in favour of the
accused also be considered.

The Carolina's famous doctrine of evidence distinguishes

evidence, which refers to all crimes, and evidence referrin
cular deed. A piece of « general » evidence is, for instance,
tation of an accused, the people he mixes with or simply the fact that

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 B. ROECK

he was seen near the scene of the crime. Pieces of evidence belonging
to the second group can be an object left by the accused at the scene
of the crime, or the fact that he was seen with bloody clothes or wea
pons at the time of the offence. Anybody accusing a girl of infantici
should obviously inquire if she was seen before « with a great, extrao
dinary body, furthermore if her body had become smaller, and if s
had been pale and weak » (CCC, art. 35). Only such and other pieces
of evidence could authorise the torturing of the accused.

No fewer than 21 articles of the Carolina deal with torture. In first

place was the Territio - the accused is supposed to become terrified
by the display of the instruments of torture which might induce him
make a « voluntary » confession. Furthermore, the accused should be
given counsel for his defence. This was recognised as necessary since

many do not know through ignorance or terror how to plead that th

are not guilty, how they should explain and proceed to do it (CCC,
art. 47).

Leading questions were prohibited and confession under torture was

not valid but, rather, confession made afterwards. This confession, too,
had then to be completed and analysed. However we do not find any
specific regulations concerning the possibility of repeating the torture
- this was left to the discretion of the « good, sensible judge ».

The verdict was not reached in public, but concentrated increasingly

on learned judges. In this respect, the Carolina represents an intermediate
stage ; it was based on the cooperation between judges and jurors - in
contrast to the older notion according to which the judge was a kind of
moderator who conducts the procedure, and the jurors pass sentence [Tru-
sen (1984, 29 sq.) ; Kleinheyer (1984) ; Krceschell (1972, 498 sq.)]. In
fact, learned judges increasingly replaced the untrained jurors in legal prac-
tice - and this tendency was reinforced by the Carolina. It also suppor-
ted the dispatch of records, the obtaining of reports from higher courts
or law schools. In the Empire as elsewhere, criminal procedure became
more and more a « paper business », which means that verdicts were
reached on the basis of the evidence of the records and, increasingly,
expert witnesses. Again, it must be remembered that this process varied
with the different political entities of the Empire. In Hamburg, for instance,
regulations concerning the work of jurors were introduced only in 1 622
[Schild (1985, 125) ; Hennings (1940)] : this means that men capable
of bearing arms were no longer obliged to appear at the trial, but that

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 CRIMINAL PROCEDURE IN THE HOLY ROMAN EMPIRE

they could be represented by people to whom such an office was trans-

ferred for a given time - citizens whose status and economic situation
made them available. In a way, they represented the whole community.
The regulations of 1622 incidentally confirmed conditions which had
existed since the late Middle Ages - but that this happened in the seven-
teenth century demonstrates the longevity of the lay element in Ger-
man jurisdiction. A thorough comparison is likely to reveal that learned
judges became dominant earlier in principalities, the territories. In cities,
especially in free imperial cities with their petrified constitutional struc-
tures, things remained as they had been for a longer time2.

One medieval element in the Carolina - « this sum of medieval and

starting point of modern criminal law » (Radbruch, 1961, 3) - is the
endliche Rechtstag , the solemn final day in court on which the verdict
was announced after oral statements from both parties (Schild, 1984,
119 sq.).

Its importance, especially in the Holy Roman Empire it seems, was

enormous. Capital jurisdiction was not simply in the hands of the sove-
reign here, the Emperor often did not even have the opportunity to inter-
fere with trials. The competence of the high jurisdiction was often dis-
puted among the authorities. The control of capital jurisdiction was the-
refore readily and ostensibly demonstrated to stress the possession of
this prerogative. The endliche Gerichtstag was a spectacle, the public
display of the state's justice and penal authority (van Dülmen, 1988,
38 sq.). The violated legal order was publicly restored. The accused had
to confess his guilt again before he was led to the place of execution,
whipped, or pilloried (the possible punishments would be too many to
enumerate). Nevertheless, it has to be noted that this spectacle - which
people from town and country flocked to see - had nothing to do with
the verdict and the actual trial.

So much for a broad outline of the ideal procedure as it appears from

the first third of the sixteenth century onwards. Some other important
elements of the legal practice should be mentioned(summarising van Dül-

2. There exists a rich literature about this. Almost every town history contains local
details ; cf. e.g. Leiser (1971) ; Simson (1918-24, 348 sq. ; 1890) ; Lindgen (1939) ;
Meye (1935) ; Nägele (1940/43) ; Nordhoff-Behne (1971) ; Schindler (1937) ; Strahm
(1910) ; Schwerhoff (1991). Further literature also in Schild (1985).

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 B. ROECK

men, 1988) : first, the option of pardon, which was frequently used and
which often was only the mitigation of a sentence (for instance han-
ging or decapitation in place of burning) ; then a delinquent's chance
to escape death in the course of the endliche Gerichtstag. There are
plenty of examples in early modern times of the surrounding crowd for-
cing the executioner to release the delinquent, even at the last minute
- especially if he did his job clumsily. Such cases have been reported,
for instance, by the Cologne councillor and chronicler Hermann von
Weinsberg (according to Schwerhoff, 1991, 165). In 1556, Tilman Isen-
heupt, who had been sentenced to death for a killing in Cologne cathe-
dral, successfully justified his deed although he refused to save himself
from execution by marrying according to an old custom. Eventually, he
was freed by an infuriated crowd (ibid.). An endlicher Rechtstag could
thus go completely awry ; it was a special case if a delinquent not only
refused to recognise a verdict, but called the judges before God to the
valley of Josephat - a grave curse which is quite often recorded (van
Dülmen, 1988, 59). In this case, the trial could be reopened, the accu-
sed subjected to torture again and sentenced a second time. In the
course of the sixteenth and seventeenth centuries, punishment for such
curses became increasingly severe. The influence of princes or other
state organs on the development of a trial - in the form of reprieve
as well as more-or-less subtle pressure on judges and jurors (as Schwe-
rhoff shows for sixteenth-century Cologne) was, of course, incalcula-
ble (Schwerhoff, 1991, 1 19). The Gnadenbitten, attempts to save a con-
vict who was already on the scaffold, were, as it has been put, pur-
sued virtually as a sport. The territorial authorities sometimes set a limit
on the countless petitions for mercy, particularly from noblemen, by ban-
ning them (Schild, 1985, 168).

Formally at least, most courts of the Empire probably referred to the

Carolina and followed its regulations (although the connections have not
yet been thoroughly studied) ; [cf. also Rüping (1984, 161 sq.) ; Dreis-
bach (1969) ; Leiser (1971) ; Schmidt (1963, 32 sq.) ; Zwengel (1963)].
But in reality, the lack of jurists trained in Roman law already was a
limiting factor. The study of a 1607 Bavarian witch trial shows quite
clearly how far reality could be removed from the ideal. I would like to
describe such a case briefly. For this purpose, the structure of the Bava-
rian criminal jurisdiction has first to be outlined. This may also be of
interest because it helps to understand the legal structure of German
territories, which is so different from that of the monarchies of Wes-
tern Europe [about the following, see Kunze (1984) ; Behringer (1990 :
85 sq.)].

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 CRIMINAL PROCEDURE IN THE HOLY ROMAN EMPIRE

Bavaria is a rather atypical case in the Empire inasmuch as it had

shown a strong centralist tendency since the high Middle Ages - from
the viewpoint of the history of criminal law, the Southern German terri-
tory appears as a monarchy in miniature. The so-called Ottonische Hand-
feste of 1311 already stipulated that « the three (!) cases punishable
by death, theft, homicide, rape, highway robbery » were exclusively in
the Duke's competence to judge. By the sixteenth century, the number
of crimes punishable by death ( Viztumshändel ) had risen to twenty ; the
capital jurisdiction was undisputedly a prerogative of the Duke (Reser-
vatsrecht). A rigid administration supervised the work of the district
courts from Munich. As far as capital jurisdiction was concerned, com-
peting feudal jurisdiction no longer existed. Monasteries and feudal lords
had to refer all cases to the district courts. The Bavarian legal adminis-
tration was divided into some one hundred of these district courts. They
were united into four Viztums- (vicedominus) regions. The regional
« governments » were subordinated to the Munich Court Council, which
could at least - theoretically - hear all cases. These governments were
not an intermediate authority, as far as their legal competence in crimi-
nal cases was concerned, but were in principle, because of their vica-
riate, the highest court. The Court Council, which was called in parti-
cularly problematic cases, remained the central and supreme instance.
Because the Duchy or Electorate respectively possessed the necessary
privileges, an appeal to courts outside the country the Reichskammer-
gericht, or the Imperial Court Council (Reichshofrat) in Vienna for ins-
tance, was impossible. The widespread custom of asking for legal reports
as decision-making aids was also uncommon in Bavaria.

Munich's supervision of the jurisdiction was particularly noticeable

during the reign of politically strong princes. The exemplary case ren-
dered below actually happened in the days of such a ruler, Maximilian
I (1 573-1 651 ). It was also one of the cases which were transferred from
a district court to Munich. One has to know, however, that the Ren-
tamtsbezirk Munich (Upper Bavaria), with its 35 district courts, was the
biggest of the Duchy ; it was directly subordinated to the ducal or elec-
toral Court Council and was the Council's experimental laboratory, so
to speak (Behringer, 1990, 89). District judges were required to send
the records of every interrogation to the Council and to wait for orders ;
in the Munich Rentamt, it was the Court Council which decided the ver-
dict.

The case becomes even more complicated (and is thus typical of the
old Empire) because the city of Munich successfully defended its juris-

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 B. ROECK

diction against that of the Dukes and later the Electors ; this applie
in particular to the capital jurisdiction which had been reconfirmed
1561 (Bauer 1992, 162 sq.). The chief municipal judge (Stadtoberrich-
ter) received the power of life and death from the Duke in presence
two councillors ; this indicated that the judge was also governed by t
municipal constitution. Only in 1804, shortly before the elevation of
Bavaria to a kingdom, was an electoral court installed (ibid., 268).

The Pflegsverwalter (head of the administration) of the district court

of Swabia reported that he had taken legal action against a woman
suspected of witchery and gave an account of the circumstances. The
court council decided to bring the woman to Munich to the Falken-
turm, where she should be subjected to severe torture. A commis-
sion which, as usual, consisted of court councillors, was set up to
deal with this case. Some weeks after the woman had been incarce-
rated in the tower, a group of councillors concluded that she coul
not be considered guilty in the modern sense - apparently she w
regarded as mentally ill or deficient. Thereupon arguments within
council arose about the course of the proceedings - in the mean-
time the woman had been tortured again, but had not confessed any-
thing. The « hawks » in the council still pleaded for more interroga-
tions and torture, and even appealed to Duke Maximilian, who was
in favour of further inquiries. The torture went on, witnesses were
interrogated - but without result. On the 1 5th of May in the follo-
wing year, the proceedings came to an end without a verdict or the
release of the accused : the old woman had hanged herself.

An analysis of this case (Kunze, 1984) reveals that many regulations

of the Carolina had not been observed (there was no particular evidence,
for example, which could have justified the woman's torture). She should
not even have been arrested, as one of the councillors pointed out -
the only testimonies were « by hearsay ». As to her state of mental
health, the Carolina would have given instructions here, as well ; but
it was not quoted in other contexts where it would have been obvious.
Still, its regulations influenced the practice of the court in many ways,
beginning with the setting up of the commission [one judge (Oberhof-
richter) and two learned councillors - this is exactly what the Carolina
provides for. Other legal sources, though, also refer to such a regula-
tion]. Still, commentaries and - in this case - legal and theological
works on the crime of witchcraft seem to have been of greater impor-
tance. The imperial regulations represent, in other words, just one of
several possibilities for clarifying a legal position.

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 CRIMINAL PROCEDURE IN THE HOLY ROMAN EMPIRE

The problem of ranking the various legal sources arose not only as
a part of the theory of statutes ( Statutentheorie ). « Justice and injus-
tice were taken principally as realities of God's creation. Therefore con-
tradictions between the various sources were only apparent, there were
no real differences » (ibid., 2).

In fact, the Carolina was observed, at least insofar as the Pflegsver-

walter of Swabia was subjected to a rigorous investigation on the
grounds of disregarding procedural regulations. In the course of this he
was tortured himself, although he was to be rehabilitated later.

VI

As was to be expected, the example shows striking contradictions

between the ideal of the criminal proceedings, as it is provided by the
Constitutio Criminalis Carolina, and its practice. This discrepancy must
always be kept in mind when dealing with circumstances in the Holy
Roman Empire. High jurisdiction was held by the most diverse political
entities : free imperial cities, princes, Electors and others, while the com-
petencies in the lower jurisdiction are completely obscure. This situa-
tion reflects the great number of customary legal procedures. In some
cities (as in Nuremberg, already mentioned above, or the free imperial
city of Augsburg) there was a municipal court (Stadtgericht), but elsew-
here the council itself pronounced the verdicts3. The lower jurisdiction
could be in the hands of feudal lords, there were village courts with
a Bauernmeister acting as judge (summarising Schild, 1985, 128). The
so-called « Femegerichte » (Vehmgerichts) had lost much of their power
in the fifteenth century [cf. Rancke, (1937) ; Meinighaus (1925) ; Pagel
(1935)], although the clerical courts must be mentioned (literary refe-
rence in Schild 1985, 234, n. 15, « Das Gericht »). Inquisitional courts
did not play a prominent role in early modern Germany. The well-studied
example of Schwäbisch Hall demonstrates how legal proceedings were
initiated - and how the juridical competence of the council could mani-
fest itself (on the following see Nordhoff-Behne, 1971). At the outset
there was a council resolution which handed over a suspect to the bai-
liffs or mayors (Stadtknechten or Stadtschultheißen) . These then con-
fined the delinquent in a tower or prison. Next, a committee consisting
of councillors and the town clerk was set up. It carried out the interro-

3. Cf. the literature quoted in note 1 ; on Augsburg, see Liedl, 1958 and Bátori, 1969.

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 B. ROECK

gâtions, as was the practice in other cities as well, for instance in Au

burg. At first, the interrogations were amicable, then, if necessary, pein
lich, i.e. they were carried out under torture. In Schwäbisch Hall, le
proceedings were structured by testimonial evidence, confession, and
finally the traditional endliche Rechtstag, when the judgement was pro-
nounced : although the verdict had been passed in the council cham-
ber since 1429 (so that the council could discuss bey beschlossener
thür, i.e. behind locked doors), the custom of reading it out in public
before the town hall persisted (ibid. : 107).

On the whole, the influence of the Constitutio Criminalis Carolina on

the practice of law in Schwäbisch Hall became noticeable only after some
time. A verdict makes reference to it for the first time in 1565 (ibid.,
108f). The influence of law schools on municipal trials was apparently
considerable in Schwäbisch Hall even before the Carolina, although it
decreased continually until the middle of the sixteenth century - pro-
bably because, from this time on, a resident council syndicus and an
increasingly significant legal library were available. The practice of the
dispatch of records was adopted apparently only at the end of the seven-
teenth century (ibid., 110 sq.).

In describing the circumstances in the Empire's various territories, it

has to be kept in mind that the competence of each authority varied.
This can be seen if we look at the situation in Southwest Germany which
was territorially particularly fragmented (cf. on the following Wettmann-
Jungblut, 1990, 133 sq.). In principle, at least, the Carolina was in force
here, as well. But it could be established, for example, that, in the area
under the jurisdiction of the catholic convent of St. Peter in the Black
Forest, many more offences which might be defined as misdemeanours
against religion were punished than were offences against property. In
the Protestant free imperial city of Ulm, things were completely diffe-
rent. Here, offences against property dominated (ibid., 139).

The Protestant community proved to be equally rigid and maybe even

more so as far as the morals and the supervision of its citizens were
concerned ; but it was apparently mainly concerned with the mainte-
nance of economic order, i.e. the protection of property, to put it some-
what bluntly. In this context, it has been pointed out that court records
not only document deviant behaviour but also reflect the interests of
those in power, that they should be used to quote Bailey - « as a guide
to changes in the administration of justice, as a searchlight on particu-
lar social relationships, and as an essential clue both to popular attitu-

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 CRIMINAL PROCEDURE IN THE HOLY ROMAN EMPIRE

Offence St. Peter 1601-1631 Ulm 1596-1636

Theft 14(13,7%) 74(50 %)

Murder, homicide, physical injury 14 (13,7 %) 26 (17,5 %)
Moral offences (fornication, 12 (11,8 %) 26 (17,5 %)
adultery, etc.)
Offences against religion (witchcraft, 60 (58,8 %) 3 (2,1 %)
magic
Offences against property (robbery, - 17 (11,5 %)
fraud)
Other offences 2 (2 %) 2 (2 %)

des to the official legal code and to t

1980, 43; Wettmann-Jungblut, 1990, 139).

Deviations in the administration of justice existed despite the funda-

mental validity of the Carolina, but not just between politically indepen-
dent entities with different social and religious structures, like the Pro-
testant free imperial city of Ulm and the catholic monastic estate of St.
Peter. Although it is impossible to establish comprehensive statistics for
the region of Baden in pre-Napoleonic times, it has to be remembered
that the subordinate authorities possessed a broad jurisdiction, despite
the fact that they ( Ämter and Oberämter) could only impose « civil »
penalties. These arose separately from the capital punishments passed
by the Malefiz courts from the sixteenth and increasingly in the seven-
teenth and eighteenth centuries. They were laid down in the imperial
legislation as well as in the territorial police regulations (Polizeiordnun-
gen) (e.g. fines or labour penalties, beating or penalties, etc.). These
measures enabled the authorities to take action against theft, libel, fraud
and other offences against public safety and order. It was left to the
discretion of the officials, however, to hand over a delinquent - in a
case of burglary, for instance - to the inquisitional court or to spare
him or her. For these offences, the Carolina stipulated the death sen-
tence or serious physical punishments like putting out the eyes (CCC,
art. 1 59) ; Wettmann -Jungblut cites cases in which the authorities sett-
led for small fines and redress (Wettmann-Jungblut, 1990, 140-142).
In many places in the eighteenth century, the chief magistrates of villa-
ges had acquired the right to act as their own « summary courts », for
example to punish crop theft if it was committed for the first time. The
bailiff courts, Rügegerichte and Frevelgerichte, which sat annually, under-

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 B. ROECK

went a similar development. They had to deal with thefts of food for
personal consumption, brawls, or insults. « Their original task, reprim
ding and punishing trespassers, was lost in the course of the eighteen
century ; they progressively became the instruments of control of t
persons who dominated the village community, in particular the baili
or village mayor, for disciplining " bad " peasants and inciting them
better house-keeping, diligence and industry » (ibid., 142).

The jurisdiction of the authorities (Ämter) was quantitatively alread

very important. Here are a few exemplary figures : The imperial Für
tenberg district court, which was in charge of the high jurisdiction
the South German landgraviate Klettgau, handed down altogether ele-
ven verdicts between 1607 and 1612. At nearly the same time
(1605-1612), 379 people were accused and interrogated ex-officio (ibid.,
1 42f).

The spectacular and cruel punishments, the theatre of horror, the

feasts of torture were the exception. It has been observed that these
instruments of the assertion and the display of power were already in
rapid decline in the age of absolutism - in contrast to the picture Fou-
cault paints. From this, one might suppose that their frequency was the
expression of a phase in the formation of the absolutist state, rather
than the consequence of its establishment. In the rather archaically struc-
tured Empire, « moral » or « religious » offences (witchcraft, magic,
heresy) remained very important until the seventeenth century, whe-
reas in more advanced England, a predominance of offences against pro-
perty emerged (ibid., 147).

But let us return to the actual legal proceedings. If we state in con-

clusion that the trial by inquisition predominated in early modern times ;
if we have mentioned precise procedural regulations concerning the rea-
ching of a verdict and the use of torture, as well as the division of the
procedure into a « secret » trial until the verdict is found and then a
public endlichen Rechtstag, we have defined only the most general com-
mon denominator of a complex legal reality.

Some further remarks about the use of torture are in order(on the fol-
lowing, see Behringer, 1990, 90 sq.). In the first place, it did not depend
on criteria stipulated by the Carolina. The Landrechtsreformation of 1518
had already formulated rules ( Folterinterlokut ) restricting the application
of torture. District-court judges, for example, were allowed to resort to
this instrument only if there was some foreseeable danger, periculum

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 CRIMINAL PROCEDURE IN THE HOLY ROMAN EMPIRE

in mora. Otherwise, the decision lay with the superordinate author

The kind of torture followed the usual pattern ; in Bavaria as elsewhere,
we find the degrees of interrogation in loco torturae, including the terri-
tio display, then the putting on of the instruments of torture. The actual
torture, as for instance « winding up », followed only in fourth place.
It was permissible (theoretically at least) to torture three times. If nei-
ther a confession nor other proof of guilt had been produced by then,
the victim was released. The suspect had thus « purified » himself. The
use of torture apparently decreased in the course of the seventeenth
century : The proportion of trials in which torture was used dropped
from 44 % to 16 % between 1650 and 1690, as Behringer has esta-
blished. The number of cases with several tortures fell as well.

Table : The use of torture according to the records

of the Bavarian Court Council
in the seventeenth century (according to Behringer, 1 990, 93) :

number % °f cases ¡n which torture was used

vear of cases

once twice three times

1650 344 16 18 10 44

1680 301 14 6 4 24

1690 227 8,5 4,5 2,5 16

Apparently, as Behringer i
became noticeable as it led to the containment of physical violence.
It appears that we can speak of a shift from physical to psychologi-
cal torture, at least in some places. The territio thus took on particu-
lar weight, for instance in the city of Schwäbisch Hall which has
already been mentioned. The council commissioned an artist to do a
painting for the torture chamber which was to depict « what the peo-
ple who have been tortured look like and the faces they make so that
the delinquents, insofar as they are going to be tortured, can see them-
selves in them » (according to Nordhoff-Behne, 1971, 110). Although
torture still existed, it was used less and less during the eighteenth
century.

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 B. ROECK

VII

The common punishments in the Empire, the structure of offences,

and aspects of social history cannot be discussed here. Statistics are
available for only a few areas, which have been studied ; the problem
of the sex-specific structure of crime has recently attracted special atten-
tion (cf. Jütte 1991, 86 sq.). Increased scientific interest has been devo-
ted to the emergence and function of the prison especially in the wake
of Foucault's work. In Germany, the first institutions of this kind appear
in Bremen (1608), Lübeck (1613), Hamburg (1622), and Danzig (1629),
adopting the Dutch model : but this kind of punishment became popu-
lar only during the eighteenth century (cf. recently Stier, 1988). Finally,
there is evidence to suggest a decrease in the number of executions
from the second third of the seventeenth century, findings which still
have to be differentiated4 (Schwerhoff, 1991, 157). Whereas it seems
legitimate to speak of the « unimaginable brutality » of the criminal juris-
diction in the last quarter of the sixteenth century (not only with refe-
rence to the Empire), the dwindling number of executions later seems
to be independent of the development of the crime rate. The evalua-
tion of this development, however, is still controversial.

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