40 ries from the thirteenth to the sixteenth mark a continuous growth of confessions obtained by torture,^ and the period was also a time of increasing political centralization in Germany.^ As Paul Koschaker has remarked,/^mtenrec^t and political centralization went hand in hand in Germany.'O Trusen casts doubt as to what extent torture, in its earlier stage, was intended for deciphering material truth. In the light of Trusen’s studies, it appears that the late medieval German procedure represented a transitional period between the early medieval oath and ordeal procedure and the inquisitory Roman-canonprocess aiming at material truth. Fromthe thirteenth to the fifteenth century, the function of confession was formally procedural: in order to convict, confession was necessary; its correspondance to material truth was a secondary matter.*^ This characteristic was carried over to the Carolina: the confession given at the Endliche Rechtstag, the ceremonial ending phase of procedure, was not a mode of proof as such, but rather a formal requisite for conviction.*- Referring to the transitional period, Trusen, therefore, prefers to speak of a “confessional procedure” (GeständnisprozejJ).^^ Inquisitorial procedure in its Roman-canon, scientific version was first incorporated into German statutory law at the threshold of the early Modern Age. It is the German renaissance statutes that, at the statutory level, reflect the transition froma medieval, accusatorial procedure to a state-initiated, inquisitorial one. The fifteenth- and sixteenth-century criminal ordinances mark a growing independence of criminal law and criminal procedure. Whereas the ® A tremendous procedural diversity was unavoidable because central political power was lacking in medieval Germanv; therefore, the German case was distinct from that of Catholic church of Innocent III or Henrv II’s England. Langbein 1974 pp. 145, 148-149. 9 The founding of the Imperial Chamber Court {Reichskammergericht) in 1495 as the Supreme Court of the Empire and the enactment of the Reichspolizeiordnung in 1530 as well as that of Constitutio Criminalis Carolina constitute important elements of the Reichsreforrn. Kleinhever 1984 p. 9. On the influence of the Imperial Chamber Court on legal procedure, on the professionalization of its personnel, and on the Court’s position within the power structure of the German Reich, see Ranieri 1994. Koschaker 1953 p. 178-180. On the close union between the centralizing territorial states of Germany, the jurists and Roman law in the early 1500s, and on the tendency of an increased written form of proceedings to replace lavmen, Schöffcn, with professional, Roman-canon-trained legal professionals; see Dawson 1960 pp. 105-109; Dawson 1968 pp. 184-185; and Strauss 1986 pp.136-142. Trusen 1984 pp. 81-82. When referring to the role of confession in the medieval German procedure, Kleinheyer speaks of a “rechtsgestaltende Prozejlhandlung,” instead of a mode of proof. For him, confession still plaved much the same role in the earlv Modern Age. Kleinheyer 1986 pp. 377, 384. Likewise, Schild claims that, in order to start torture, the accused’s guilt had to be almost certain. Nevertheless, a confession was necessary for the conviction to be legitimate. Besides confession, legitimacy required publicity, Endliches Rechtstag. Schild 1984 pp. 140-144. '- Trusen 1984 p. 83; Kleinhever 1984 p. 20. If the accused recanted his or her confession at the Endliche Rechtstag, the two Schöffen present in the torturechamber were called to witness the authenticity of the original confession given after the torture. Trusen 1984 p. 85.
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