39 The link between centralization, Roman-canon academic learning and, consequently, a certain degree of legal professionalism all had to be at hand in order for the statutory theory of proof to be adopted. However, the German case is different fromthe French one in that the inquisitorial procedure anci judicial torturewere in fact introduced in Germany before a full-blown Romancanon law of proof was adopted in the German territories. Only at the beginning of the early Modern Age did the interplay of the factors mentioned above actually allow the statutory theory of proof to take over. According to Eberhardt Schmidt’s well-known thesis, which refuted a former belief, Inquisitionsprozcss in Germany was not a product of the Rezeption of Roman law. The latter had caused a “scientification” {Verwissenschaftlichung) of the former, however, as the indigenous German inquisitorial mode of procedure had been cast in an Italianate mold. According to Schmidt, the Offizialprinzip and the Instruktionsmaxime - the two basic components of the inquisitorial principle - had forcefully pushed the old medieval ordeals and oaths out of their way in the thirteenth, fourteenth and fifteenth centuries.^ Offering convincing empirical evidence, Schmidt had, thus, refuteci the view, prevailing up to his time, that the inquisitorial procedure and torture had been introduced only with the reception starting in the late fifteenth century.'* According to Schmidt, the inquisitorial principle and torture had in fact gained ground much before that, in the thirteenth century, as an indigenous German development.5 Schmidt’s conception of the German Inquisitionsprozess as a genuine German development has afterwards, in turn, been refuted.^ Although inquisition and torture were known in Germany before the end of the fifteenth century, as Winfried Trusen claims, the development was not a genuine German invention, but had in fact been affected by the general Roman influence on European law; in this development, canon law played an important role^: “Soweit wir das fctstellen können, ist nirgeyids aus dern Kontinent cine Einfiihrung der Folter in die weltliche Gerichtspraxis ohne direkte oder indirektc Einflufinahme dcs römischen Rcchts zu beobachten. Sollte Deutschland die einzige Ausnahme gewesen sein?” Beginning in the fourteenth century, archaic proof began to seem inconsistent with a growing idea of crime as an offense towards the public. The centu- ■* Schmidt 1940 pp. 13-14. The nineteenth-centurv legal history had presented the Carolina’s “ordinar)- procedure” as truly accusatorial, a point that Schmidt forcefully denied. In later studies, the nineteenth century legal history has been placed in the nationalist-romantic context of its day; see Sjöholm 1976 pp. 23-34 and Nousiainen 1993 pp. 191-198. 5 Schmidt 1940 pp. 23-24, 30-53. * Trusen 1984, especially pp. 49-69; Langbcin 1974 pp. 152-155; Kleinheyer 1979 p. 367; Oehler 1986 pp. 847-848; sec also Riiping 1991 p. 20-21. 7 Trusen 1984 p. 44.
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