125 It was, thus, the strain of development that may conveniently be gathered under the heading of “professionalization” that gave nourishment to the willingness of legal scholars such as Feuerbach and Zachariä to prefer a professional judiciary to laymen juries. In this important sense, they departed from the French pre-revolutionary philosophes, who had seen the professional judges, noblesse de robe,” as the focal point of their criticism of the justice system. For the spokesmen of the negative theory of proof, lawyers and judges no longer represented a threat, for these groups had come to forman important part of the core of the Mittelstand, and judges can even be said to have played a critical role vis-a-vis the state bureaucracy. In the legislation of the German states, the negative theory of proof came to an important role as a transitory theory of proof between the statutory theory and the free evaluation of proof during the first half of the nineteenth century. Some formof a negative theory of proof was adopted in various German states during the first half of the century before the actual break-through of the free evaluation of evidence in the late 1840s and 1850s.^- The most influential of these was the Bavarian Criminal Code of 1813, drafted by Feuerbach himself. It surpassed a systembased on the Carolina, the legal theory of proof and extraordinary punishments.In many of the codes of the period, however, marks of the extraordinary punishment remain; for instance, according to the statutes of Bavaria (1813), Sachsen (1838), and Baden (1845), the death penalty could never result from circumstantial evidence only. play 34 The Professional Judiciary and Free Evaluation of Evidence By the 1840s, theories proclaiming some sort of a Be%veistheorie based on rules of proof - be it a positive or negative legal theory — had lost their supporters. Free evaluation of evidence had broken through in German scholarly debates^5; the question was now whether the right to freely evaluate evidence could be trusted to professional judges, or whether juries, Schvu'urgerichte, were better suited to that purpose. According to the Strafprozeflordnung of Baden of 1845, a minimumamount of evidence alwavs had to be there for a conviction to take place; additionally, the judge had to be subjectively convinced of the guilt. Similarly according to the Strafprozejlordnung of Austria (1803) and Wiirttemberg (1843). Krieter 1927 pp. 8-9, 31, 47, 66; Stichweh 1994 pp. 272-276. The negative theorv of evidence was also introduced in the Netherlands in 1830, Mittermaier 1834 pp. 83-84. Bavaria’s statute on the law of proof from the year 1813 established a statutory theory of proof with the possibility' of convicting although not to death, on the basis of circumstantial evidence onlv. In 1848 the principles of orality and immediacy were established, as w'ell as that of the free evaluation of evidence. Juries were installed in serious criminal cases. Krieter 1926 pp. 40—45. Ibid. pp. 12, 31; Mittermaier 1834 pp. 23—24. For the use of circumstancial evidence in the famous cases of Galas and ^'endt, see Bauer 1842.
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