128 made frequent use of this kind of rhetoricd^ For some liberal scholars, in line with the oppositional position that many of them held against the growing structures of the Beamtenstaat,'^^ a professional judiciary was still not trustworthy enough to be given the right to evaluate evidence free of rules.Or at least it was argued so; the brunt of the critique seems, however, to have been lost as the 1840s drew nearer. In fact, the judiciary was by its make-up more bourgeois than the administration. Politically, in most German states, the judges stood left of the administration, and as the official watchdogs of the constitutional state, the judiciary often acted as spokesman for liberal progressive ideas, thus frequently clashing with administrations and rulers."^® Criminal Procedure and Criminal Law Aclose connection between criminal law and criminal procedure is seen in the German literature of the 1830s and 1840s. The development towards a subjectification of criminal Tatbestände and thus, a school of classical criminal law, which had originated in the works of Feuerbach, is clearly reflected in the writings of authors such as Mittermaier, Welcker, and Köstlin. For these scholars, it is clear that the statutory systemof proof could not adequately deal with the subjective Tatbestand of crime. Mittermaier, the highly influential professor at Heidelberg Universitv, wrote in 1834 that to produce evidence on the ^inneren Merkmalen” of crime, circumstantial evidence was indispensable.According to Köstlin, a negative theory of proof can only tell about the objective Tatbestand of crime. Evidence needs to be evaluated freely, if information on “die subjective Seele der See Feuerbach 1813 pp. 56-57, 64—65; Möhl 1842 pp. 286, 292—293; Foelix 1843 p. 106; Mittermaier 1844 p. 314; Mittermaier 1845 pp. 9-10; von Gneist 1849 p. 66; and Abegg 1850 pp. 88-89. Hattenhauer 1980 p. 218. For Mittermaier, in countries where a professional judiciary had been given the right to freely evaluate evidence, guarantees against arbitrary decisions had not been adequately provided for. This kind of a situation gave the judiciary a “furchtbare Gewalt viber Leben und Tod.” A “mixing of different principles” through the negative theory of proof did not suit Mittermaier, however. Mittermaier 1834 pp. 90, 118-125; see also Mittermaier 1833 p. 126. Ten years later, Mittermaier remained negative towards the jury, at least the French intirne conviction version of it, hut seemed more favorable towards professional judges acting without rules of proof as long as sufficient guarantees against arbitrariness were provided for. Mittermaier 1945 pp. 401—419. The critical posture of the judiciary remained until the end of the 1800s when the judges, according to Flattenhauer, “hatten ihren Frieden mit dem Staat gemacht.” Hattenhauer 1980 pp. 283-284, 287. Mittermaier 1834 p. 404. Gontrary to medieval Germanic law, the Carolina did, to be sure, already distinguish between premeditated homicide and manslaughter; Schaffstein 1984 pp. 147148. This distinction does not, however, in itself say anything about the possible ways of proving the premeditation.
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