127 sense of justice that laymen lacked. Furthermore, juries offered no guarantees of judicial independance, as many jurors lived in continuous touch with the lower classes, and besides, facts and legal questions could not be separated the way the division of work between jurors and judges presupposed."^* Although in number, those with the desire to combine the free evaluation of proof with a professional judiciary clearly lost the battle against the liberalGermanist movement favoring criminal trial juries which gained considerable momentumin the 1840s, this little cluster is worth more attention that it has traditionally been given. The idea of a professional judiciary as the depository of free evaluation of evidence was a consequence, on one hand, of a formation of the legal corps as a professional entity that had gained impetus with the creation of the bureaucratic state since the late 1700s, and on the other, of the efforts at the systematization of the law and, above all, at creating a Juristenrecht by the Historical School from the 1810s onwards. With these developments, lawyers and judges came to play an ever-increasing role in the administration of justice as the nineteenth century matured. In the 1840s, however, the time was not yet ripe for granting the professional judiciary the right to evaluate evidence free of statutory rules; there were more forceful countercurrents in existence. Free Evaluation of Proof and Laymen: The Triumph of the Trial Jury In the Germany of the 1840s, liberals Initiated a sustained political action; soon, their efforts began to bear fruit in both state parliaments and local organizations."^^ The growing political strength of liberalismwas mirrored in the discussion on the shortcomings of the criminal justice systemas well: as 1848 approached, the idea of a trial jury came to dominate legal scholarship. Historically, the jury was justified by the mythical “Germanic freedom” {germanische Freiheit), the nonexistence of any judiciary power above the free Germans."*^ Naturally, a (complete) abrogation of the statutory rules of proof was supported by those in favor of the jury. It was with the changes of 1848 that/re/e Beweistviirdigung finally replaced the statutory theory of proof. During the earlv nineteenth century, the debates had circulated around key terms such as “arbitrariness” (Willkur) and “guaranteesto prevent it. Spokesmen for both the professional judiciary and juries on one hand, and the legal theory of proof and free evaluation of evidence on the other hand, had ■*' Ibid. pp. 102-106, 110-111, 114-116. Shceh.in 1978 p. 12. Sjöholm 1972 pp. 36—48. For the ditfcrent w,tvs of guaranteeing the avoidance of arbitrariness, see Mittermaier 1844 pp. 307-310.
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