RB 54

41 criminal jurisprudence in the Middle Ages had largely existed to maintain Landfrieden, at the brink of the early Modern Age punishing was already becoming one of the independent functions of a state in the making.*'^ Undoubtedly, the most important of the early modern German criminal statutes is Emperor Charles V’s criminal statute of 1532 {Constitutio Criminalls Carolina). Despite its rather extensive rules of substantive criminal law, the Carolina is mainly known fcir its procedural sections.Besides the Carolina, certain other statutes deserve mention in this respect: these include the Worms Reformation of 1498, considered as the start of the reception,'^ and, in particular, Constitntio Criminalis Bambergensis of 1507.'^ The transitional character of these laws should not be overemphasized, however. As Trusen and Langbein have shown, most of the central features of the renaissance laws were no novelties, but rather a product of a king-termdevelopment at the court practice level. This is especially true where judicial torture, the inquisitorial principle and also the statutory theory of proof are concerned. Contrary to the earlier statutes, the Worms Reformation and the Bambergensis set rules for the evidentiary requirements - a clear sign of Roman-canon learning at work in the background. The Reformation of Worms was the first German statute with a highly developed theory of circumstantial evidence, although later statutes went still further in the classification of evidence. At any rate, the Worms Reformation required a certain amount of evidence for torture to be initiated; it also differentiated between the evidence needed for torture and that necessary for conviction. In other aspects as well, the statute was strongly influenced by Italian jurisprudence. The late medieval tendency of the inquisitorial procedure to push the accusatorial one out of its way is clearly refleeted in the Reformation, although both modes of procedure were still ineluded in the statute. In the accusatorial proceedings, it was up to the plaintiff to inquire into the case and produce the necessary evidence; no torture was alKlcinhcvcr 1984 p. 16. In general on the Carolina, see Sehmidt 1965 pp. 108-146. Schmidt 1940 pp. 69—73. ■' The earlier fifteenth-century criminal ordinances, Maximilianischc Halsgerichtsordnnng fiir Tirol (1499) and fiir Radolfzell (1506), the Ellwangcr Halsgerichtsordnung (1466), and the Niirnbcrgcr Halsgcrichtsordnung (1485), seem to implicitlv require judicial torture, although no reference is made to torture in them in the last two mentioned. The Maximilian statutes mention torture, but set no evidentiary limitations on its use; all this seems to be left to official discretion. Schmidt 1965 pp. 102-104 and Langbein 1974 pp. 158-159. Rarnbergisebe Halsgcricbtsordnung is considered the Carolina’s predecessor and model. The Bambergensis judicialized torture by setting limits to it and laid a clear emphasis on the Inquisitionsprinzip. The Carolina was, in turn, a kind of enlarged version of Bambergensis, stretching its geographical and temporal influence far beyond that of Bambergensis. Still in the nineteenth centurv, the Carolina was still in full use, see the case described in Reimann 1984. It is, however, useful to bear in mind that the Carolina, like any written statute, was not understood to be strictly binding in the modern sense sense of the word; see Riiping 1984 p. 161 and Kunze 1984 p. 203.

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