132 that abolishing the statutory theory of evidence meant freedom from the chains of scholasticism and a return to the “original starting-point,” Roman law, where free evaluation of evidence had reigned.Endemann did not even seriously consider the possibility of civil juries. Although Georg Beseler in his “Volksrecht und Juristenrecht” of 1843 had preferred Schöffengerichte to Geschworengerichte,^^ the first thorough attempts at a theory of a mixed court consisting of both laymen and professionals (Schöffengericht) appear in the German scholarship and parliamentary discussions soon after the victory of Sch'ivurgerichte after 1848.59 1850, Schöffengerichte (one professional judge and two lay members, Gerichtsschöffen) were established for petty criminality {Polizeistrafen) in Hanover, and in 1869 in Sachsen and Wiirttemberg for cases of “mittlere Kriminalität”^’^ The reforms were inspired by the difficulty of drawing the line between questions of fact and law- an old dispute. The battle line was now drawn between the spokesmen of juries and mixed courts, respectively. As a compromise, the Gerichtsverfassungsgesetz for the unified German state that entered into force in 1879 followed the Hanoverian model, establishing Schöffengerichte for cases of pettv criminality only. From the 1870s, the spokesmen of the jury were driven into a defensive position, until Schöffengerichte finally completely replaced the jury system in Germany in 1924.61 Landau sees the trend towards Schöffengericht as a consequence of a heightened trust in a professional judiciary, and this trust was a product of the modern oral and public procedure. For him, mistrust of a professional judiciary as an argument had lost its validity after 1850 and could no longer be effectively referred to, as the German judiciary had in the second half of the centurv become an integral part of the German bourgeois society. Mixed courts, then, could “als Modell in in einer zumindest in der Oberschicht relativ homogenen, verbtirgerlichten Gesellschaft akzeptiert werden.”^- Endemann 1860. As for civil procedure, the principle of free evaluation of evidence broke through in most German states in 1867-69. In 1871 a new reform was initiated bv the Prussian Minister of Justice Leonhardt on the basis of the proposition of the North German League. It became a lawin 1877, making free evaluation of evidence part of the procedural systemof Germany. Patermann 1970 pp. 126, 132, 149. Beseler 1843 pp. 264—265, 280-283. Grävell had suggested Schöffengerichte consisting of a majority of professionals and a minority of laymen as a way of compromising in order to incorporate the French legal systemof the Rhein provinces, annexed anew to Prussia, to the ancien regime secret and written Prussian system. As part of the reformed criminal procedure, Beseler had already suggested a formof Schöffengerichte in 1833. Landau 1987 pp. 290-291. Landau 1987 p. 292. These included certain sexual crimes and grand larceny. Ibid. pp. 293-301. In Sachsen, the lav members of the court could only take part in the determination of guilt; in Wiirttemberg, they decided on the punishment together with the professional court members. Ibid. pp. 297, 300. For a detailed account of the abolition of gesetzliche Bezceisregeln in Hanover, see Drosdeck 1994. Krieter 1926 pp. 302-303. Ibid. pp. 296, 303-304.
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