Lapas attēli
PDF
ePub

honourable men1, who spoke to his good reputation, and declared him incapable of perjuring himself. If he could not produce the requisite number of men, it only remained for him to submit himself to some ordeal or to claim the judicial combat. Torture was commonly resorted to in order to compel a confession of guilt. It was strictly permissible only in the case of slaves; but as a matter of fact it was resorted to against freemen also. The system of jurors or assessors continued to the middle ages. Each court was composed of a judge (Richter) and of persons (Urtheiler) whose duty it was to appreciate the facts and find the judgment. In the ordinary courts the duty of deciding the question of culpability was confided to all the freemen present at the hearing or to a limited number of hereditary or elective assessors (Schöffen). When the number was limited, it was generally seven, and sometimes twelve 2. At first prosecutions were left to be instituted by the victim or a member of his family. Subsequently the assessors were charged with bringing offences to justice. The guilt or innocence of the accused was determined by a majority of voices.

Penal procedure in the middle ages was marked by the following features the necessity of an accusation to put the judicial machinery in motion, the absence of any preliminary inquiry, the evidence at the hearing of the parties, the oral and public nature of the proceedings, and the division of judicial functions between the assessors and the judge. The following innovations were introduced by the Roman and canon laws: the public prosecutor, written interrogatories, the establishment of the offence by means of a record of inquiry, secret inquiry, legal proofs, and judgment on written documents. The judge had merely to collect the documents furnished by the preliminary inquiry and gave his judgment on a perusal of the record. The confession of the accused was regarded as the best proof (regina probationum), and in order to get this, recourse was had to torture. The Ordinance of Bamberg required a confession even when the offence was proved by the depositions of witnesses, and in order to obtain such confession, prescribed the employment of torture; the Ordinance of Charles V3 was more humane, and declared that if the accused, These men were called conjuratores, sacramentales. The excellence of the original jury system in England was that the jurors were men of the locality who knew the facts and the parties.

3

2 Details are to be found in a number of medieval collections or books of law (Rechtsbücher), of which the most famous are known as the Sachsenspiegel and the Schwabenspiegel. They are both private works, with no legislative authority, intended by their authors to fix the rules consecrated by custom. They owed their success to their intrinsic value.

3 These two celebrated Ordinances opened a new era in the history of German criminal law. Their influence, succeeding to that which had been formerly exerVOL. X.

C

after sufficient proofs of his guilt, was unwilling to confess, it was to be explained to him that the judge had made up his mind, and it was therefore useless for him to deny; if he persisted in his denial, the punishment provided by law might be inflicted on him, without subjecting him to torture. At the time the Ordinance of Charles was promulgated, the Criminal Court was still composed of a magistrate assisted by assessors; but even this Ordinance enjoined recourse, in doubtful cases, to the opinion of men learned in the law. Starting from the seventeenth century the system of assessors fell more and more into disuse, and by the end of the eighteenth and commencement of the nineteenth century the judicial charges were almost entirely in the hands of jurisconsults, and the representatives of the non-judicial element were systematically removed; only here and there assessors were retained, principally as special courts for trying forest and rural offences.

The exact practical results of the change of procedure which came about in the seventeenth century may be seen in the treatise of the famous jurist Carpzow (1635), under the title of Practica nova imperialis Saxonica rerum criminalium. He recognizes the right of private persons to institute the penal action, but states that from his time public prosecutions are far more frequent. The procedure, according to him, was divided into two parts: the inquisitio generalis, including all the preliminary investigations made with a view to establish the existence of the offence, and fix the presumption on a particular person; and the inquisitio specialis, that is, the charge in regular form against the presumed author of the punishable act. This commenced with the examination of the accused, who was called upon to answer the different heads of the accusation; then followed the production of the full charges, the hearing of witnesses, and the judgment. The judge could base his decision on the evidentia facti, resulting from the flagrans delictum, or the combination of certain proofs, on the confession of the accused, or on the convictio rei, which was arrived at on the concurrent testimony of two respectable witnesses. However strong the proofs were, they did not suffice for condemnation, but if they were conclusive, they justified the employment of torture. If the proofs were considered insufficient to justify the application of torture, but there nevertheless existed strong presumptions, the accused was invited to take the purgatory oath. These rules became the common law

cised by the Mirrors of Saxony and Suabia, extended to the whole of Germany, and lasted up to modern times. The Ordinance of Bamberg was drawn up in 1507, and served as a basis for the great criminal Ordinance of Charles V, and of the Holy Roman Empire, generally known by the name of Constitutio Criminalis Carolina, which was promulgated as a law of the Empire in 1532.

of Germany, but they afterwards underwent some modifications; the procedure being divided into three parts, the information, the preliminary inquiry (untersuchung), and the special trial (spezial inquisition). The adoption of the inquisitorial system rendered the procedure written and secret, and led to the theory of legal proofs and the frequent employment of torture; the proofs had henceforward a sort of mathematical value determined by the law; the judgment was passed on the record, without oral debate and without publicity. Not only doctrine and practice, but positive legislation also contributed to hasten this transformation.

But during the course of the eighteenth century, German jurists returned to diametrically opposite opinions; after having borrowed the ideas of the Roman and canon laws, they repudiated them as a foreign importation, and sought to renew the chain of the traditions of ancient German law. The Protestant Universities seconded them in this task, and combated with the greatest energy the law which had issued from the practices of the Church; while the philosophers lent them the aid of their talent and their authority, and united with them to suppress in the name of humanity and justice a procedure which enormously favoured the prosecution at the expense of the accused, and which often left to an innocent person no means of defence. The first victory of these efforts was the abolition of torture. It was some time, however, before this reform became general. By an order of the Cabinet of June 3, 1740, the Prussian Government had restricted the employment of torture to the crimes of treason and to grave cases of assassination; the Courts, on their side, showed such an ever-increasing repugnance to recur to it, that it ceased to be used at the close of the eighteenth century, though it was only formally abolished by the Code of 1805. Austria had preceded Prussia in this matter, Maria Theresa having, on June 2, 1776, forbidden the application of torture to accused persons. An analogous step had been taken at Baden in 1767, and the example had been followed by Mecklenburg in 1769, and by Saxony in 1770. On the other hand, torture was retained in Bavaria and Würtemberg up to 1806, in the Duchy of Weimar up to 1817, in Hanover up to 1822, and in the Duchy of Gotha up to 1828.

The principles of the German common law again asserted themselves in the Austrian Penal Code of 1803, the Prussian Criminal Code of 1805, and the Bavarian Penal Code of 1813. But traces of the Roman influence remained. The Prussian Code retained the official prosecution and the secret inquiry. The project of the Bavarian Code had been prepared by the illustrious jurist Paul Anselm de Feuerbach; by this the procedure remained inquisitorial

[ocr errors]

and secret, but the accused was allowed a defender' in heinous cases. Feuerbach had wished to make the trial public, but could not make his opinion prevail. When the proof was insufficient, but the presumption of guilt was not rebutted, the judge simply pronounced a provisional discharge (entbindung von der instanz— absolutio ab instantia), that is, the accused was liable to be retried, if further proof were forthcoming, and meanwhile he would be placed under police surveillance. Many other States followed the principles of the above codes; the dangers of the secret procedure were acknowledged, and common sense revolted against the absurdity of so-called legal proofs, which often forced the judge to condemn against his own conviction. The legislation, which was the issue of the French Revolution, had inaugurated a system of procedure more consonant with the dictates of reason and equity. This system, founded on the separation of the functions of judge and accuser, on the orality and publicity of the trial, on the substitution of conscientious conviction for legal evidence, and on the institution of the jury for the trial of grave offences, would have speedily spread itself over the whole of Europe, but the hatreds aroused by the wars of the Republic and the Empire and the fear of favouring French influence retarded its introduction into Germany. Only the countries on the left bank of the Rhine enjoyed the benefits of the new system early, thanks to the French Code of Criminal Procedure of 1808, which was extended to them.

The first Code in which a tendency to approach French ideas is manifested, is the Würtemberg Code of June 22, 1843, which, though it retained the secret procedure, required that the judgment should be preceded by a public trial in all heinous cases. This tendency is more strongly marked in the Bavarian Code of March 6, 1845, and is due to the works of the jurist Mittermaier. The procedure is divided into two parts, the preliminary inquiry, which continues to remain secret, and the trial, which becomes oral and public, and which takes a preponderating place. The theory of legal evidence is done away with, but trial by jury is not admitted. A good many States, however, adhered to the common law. Then came the Revolution of 1848, which exercised a decisive influence on German criminal procedure. The Assembly of Frankfort declared the inviolability of the person and the domicile, the secrecy of private correspondence, the orality and publicity of criminal trials; press offences were to be tried by jury; no one could be withdrawn from the jurisdiction of the ordinary courts, and exceptional tribunals were forbidden. A majority of States revised

'All the defender could do was to draw up a written defence.

their laws of criminal procedure in accordance with these principles; for instance, Prussia by an Ordinance of January 3, 1849, Austria by the Code of January 17, 1850, and Bavaria by the Law of November 10, 1848.

But a reaction speedily set in, resulting in the enactment of some manifestly retrograde laws. For instance, in Austria, the Code of 1850 was replaced by the Code of July 29, 1853, which restricted the publicity of the trial, and returned in some respects to the system of legal evidence, by determining the minimum of evidence necessary for a conviction. Henceforward, two opposing tendencies were seen both in doctrine and legislation, the one favourable to French ideas and the changes made since 1848, the other favouring a return to the former procedure. However, the old state of things had received a definite condemnation, and liberal theories, after undergoing divers vicissitudes, finally triumphed almost universally. While the Code of 1877 had to suppress many local divergencies, it took as its basis those principles which were admitted in the large majority of States; namely, a private accuser, oral and public trial, and the admission of the non-judicial element, a jury for crimes, and assessors for smaller offences. One may say, then, that the Code of 1877 only consecrated juridical rules already in force in the greater part of the empire.

To sum up, criminal procedure in Germany, as in most European continental States, has undergone three successive phases. At first, it is purely accusatory: that is, a complaint by the victim or his relatives is necessary. The Court is composed of all the freemen of the tribe, or of a certain number of delegates, and the trial is public. The accused establishes his innocence by getting his relatives or friends to solemnly confirm his declarations, or by the judicial duel or by ordeals. At the end of the middle ages, and under the influence of the Roman law and of the canon law, the procedure becomes inquisitorial. The judge takes cognizance ex officio on a charge, on a private complaint, or simply on his own suspicion. The inquiry and examination of the accused are secret, and everything is committed to writing. The proof consists of the confession or the depositions of witnesses; the confession especially is regarded as of the last importance, and in order to extort it from the accused, resort is had to violence. The law lays down in what circumstances the judge must hold the guilt to be proved. Judgment is delivered on the written record, without any open trial, arguments, or publicity. Then came what may be called a mixed procedure. Under this new system the starting-point of every criminal trial is a prosecution generally set in motion by a special functionary, representing society. The preliminary inquiry is conducted with

« iepriekšējāTurpināt »