Constitutio Criminalis Carolina (1532) [Excerpts]
Image: an allegorical representation of Justice from Joost Damhouder, Praxis rerum criminalium (1562), Cap. CLIII. Source: Server Frühe Neuzeit.
The Constitutio Criminalis Carolina summarized and codified the
process of "inquisition," that is to say, a procedure for discovering guilt
or innocence in criminal cases by means of official inquest. These procedures
included, of course, the use of judicial torture. But there was a great deal more to the process than thumbskrews and strappado. Everyone knew that inflicting pain to exact a confession was a measure of last resort, which also compromised the validity of the confession it produced. Before torture could be be applied, therefore, it was necessary to establish "legally sufficient indication" of guilt, what we would today call "probable cause," and to seek a confession by means other than torture before proceeding further. A large number of the clauses contained in these excerpts lay out the precise rules of procedure for establishing "legally sufficient indication" of crime. Because torture diminished the value of a confession, and for other reasons as well, criminal procedure was also concerned with the rules of proof in criminal cases. These included special regulations for "sorcery" and malefic witchcraft.
Drafted in the years between
1521 and 1529, the code was approved by the Estates (Reichstag)
of the Holy Roman Empire and promulgated on the authority of Emperor Charles
V in 1532. The following excerpts describe the rules that governed what
constituted legally sufficient indication of guilt, both in general and
with respect to particular crimes; the excerpts also describe procedures
for questioning before and after torture; and finally they describe courtroom
ceremony and its purposes.
Drafted in the years between 1521 and 1529, the code was approved by the Estates (Reichstag) of the Holy Roman Empire and promulgated on the authority of Emperor Charles V in 1532. The following excerpts describe the rules that governed what constituted legally sufficient indication of guilt, both in general and with respect to particular crimes; the excerpts also describe procedures for questioning before and after torture; and finally they describe courtroom ceremony and its purposes.
|Of judges, judgment-givers,
and court personnel
Proceeding against the accused by the authorities ex officio
Cases requiring a legally sufficient indication for torture
How the sufficient indication of a crime shall be proven
General indications sufficient for torture
[Sufficient indication of particular crimes:]
Concerning examination under torture
demonstration of innocence before torture
[How the culprit shall be questioned after a confession has been given:]
When the prisoner retracts the confession
When the prisoner has been found not guilty
Setting of a final court date (Rechttag)
Concerning courtroom procedure
We, Charles V, by grace of God Roman Emperor, Augustus, Extender of the Empire for all time, King in Germany [etc.] do publicly declare, that whereas according to old custom and tradition of the Roman Empire of the German Nation as carefully confided to us through our and the holy Empire's Electors, Princes, and other Estates, most criminal courts are staffed with persons who have not studied, had experience with, or exercised our Imperial law. And that therefore in many places proceedings are often contrary to law and reason, and either the innocent are punished and killed or the guilty reprieved, dismissed and set free through irregular, deceitful, and protracted proceeding with great disadvantage to criminal complainants and to the common weal. And that, according to long-established usage in German territory in these matters, the criminal courts in many places cannot be staffed with legally knowledgeable, experienced and practiced persons.
Therefore we, together with our Electors, Princes and Estates have deigned to command several learned, thoroughly experienced persons to make a summary, assembled in a form which we have ordered to have printed, of how and in what manner judicial proceedings in criminal cases ought best to be conducted according to law and equity; in order that from henceforth all and each of our and the Empire's subjects can in penal matters—in consideration of the enormity and hazardousness of the same—follow the above-mentioned summary, in accord with the common law, equity, and honored customary usage, as any man would doubtless be inclined to do in his own interest, and also in the hope of receiving reward from the Almighty. However, we deign by this ordinance to have taken away from the Electors, Princes, and Estates nothing of their old, well-established, lawful and equitable practices.
§ 1. First: We decree, ordain, and will that
all criminal courts shall be staffed and provided with judges, judgment-givers
and court scribes—persons of piety, honor, knowledge, and experience—the
best and most upright to be got and had according to the circumstances
of each place. Moreover, nobles and professionals may also be used.
In these matter every authority shall exert all appropriate diligence to
see that the criminal courts are ordered to the best, and that injustice
be done to no one; both proficiency and surpassing concern are essential
to these great cases—which concern human honor, body, life, and property—in
order that nobody be able to excuse his negligence and remiss in such transgression
with legally proper and sufficient reason, but rather be justly punished
according to this our ordinance. To that end shall every authority
holding penal courts stand solemnly cautioned.
And because for some time in some places some nobles and others who are entitled to sit in such courts by virtue of personal inheritance, by virtue of office, or otherwise, have refused to sit in such courts, being unwilling to do so on account of their noble estate, evil-doing has often times gone unpunished. Because such court-sitting neither can or shall work any disadvantage whatsoever to their dignity or rank, indeed to the contrary, through the furthering of justice and the punishing of the wicked, serve and redound to the honor of the noble and the officer, they may therefore sit in person in such criminal courts as judge and as judgment-giver so often and so much as is thought good and necessary according to the circumstances, and therein deal and proceed as appropriate to and in conformance with this our ordinance. Where, however, following old tradition some nobles and others have up to now been sitting in such courts, it is our will that they shall continue to sit without future refusal, and that this tradition and usage remain in full force and effect.
Concerning those who hold court by virtue of property
§ 2. Those persons who are obligated on account of their property to hold criminal courts, and are unable either to hold or to administer them due to weakness and infirmity of body or mind, or on account of youth, age, or other incapacity, shall, as often as the need arises, name and ordain other capable persons to hold the criminal courts in their stead—with the knowledge and prior approval of the proper superior judge.
The oath of a judge who judges capital matters
§ 3. I, ____, do swear that I shall and will
in criminal cases allow the law to take its course, and that I shall judge
and sentence the poor like the rich, not wavering through affection, enmity,
bribe, gift, or anything else. And especially will I faithfully adhere
to and apply Emperor Charles V's and the Holy Empire's criminal courts
ordinance, all to the best of my understanding, faithfully and undeceitfully,
so help me God by the Holy Gospels.
§ 6. When someone is suspected of a crime through common repute, or is notorious on account of other credible indication, and consequently has been arrested by the authorities acting ex officio, he shall at first not be examined under torture unless there is credibly established legally sufficient and consequently suitable indication connecting him to the said crime. Further, every judge in these serious cases, before investigation by torture, shall to the extent feasible and according to the character and circumstances of each case, make inquiry and diligently investigate as to whether the crime of which the accused is suspected and made notorious happened or not, as will be hereafter further expounded in this our ordinance.
§ 7. When the aforementioned judgment-givers are in doubt about the decision whether, in a particular case, the adduced suspicion is or is not sufficient for examination by torture, they shall in consequence seek advice from the authorities—from the local authorities directly in charge of the penal jurisdiction, or from those places cited at the end of this our ordinance; and moreover, they shall accurately report in writing to the said authorities in such advice-seeking all the details and circumstances of suspicion known to them.
§ 8. When the crime obviously merits the death penalty, or when legally sufficient indication (as before mentioned) is produced in such a case, it shall be examined into—under torture, if useful to establish the truth—and the judicial proceedings shall be held upon the culprit's confession in the manner below prescribed and ordered for those who are brought before the court upon private complaint.
§ 9. When, however, such an accused refuses to confess to the suspected crime without or despite examination by torture, and when he may nonetheless be convicted of it, the same proofs and procedure shall apply as when capital matters are raised by a complainant, as hereafter plainly set forth.
§ 10. When, however, on account of a sufficiently
undoubted crime, someone is convicted and found guilty and is finally to
be punished on body or limb according to this our and the Holy Empire's
ordinance by the authorities acting ex officio; that is, when the said
penalty comprises neither death nor perpetual imprisonment, the sentencing
to this penalty shall be in accord with Article 196; and the same applies
when someone has been caught in the act.
§ 18. In this our and the Holy Empire's criminal courts ordinance, conforming to the common law, the arrest and confinement and also the examination by torture of one who is accused and suspected as the criminal and has not confessed, is based upon legally sufficient indication, sign, and suspicion of the wrongdoing (as dealt with above and below); yet it is not possible to set forth all of these matters or signs which suffice for legally sufficient indication or suspicion. Nonetheless, however, in order that the officials, judges, and judgment-givers, who are otherwise uninstructed in these matters, may be the better informed as to what establishes a legally sufficient indication or suspicion, the following examples of legally sufficient indication or suspicion are hereafter set forth in a manner that everyone, to the extent of his German, can identify or distinguish.
Concerning the meaning of the word "indication" (Anzeygung)
§ 19. Where hereafter we discuss "legally sufficient indication," we intend thereby also to have consistently meant legally sufficient signs, suspicion, and presumption, and therefore we drop the residual words. That no one shall be examined under torture without legally sufficient indication:
§ 20. When legally sufficient indication
of the crime which it is desired to investigate has not been produced and
proven beforehand, then no one shall be examined; and should, however,
the crime be confessed under torture, it shall not be believed nor shall
anyone be condemned upon that basis. When, notwithstanding, some
of the authorities or the judge proceed in this way, then they shall be
bound to make appropriate compensation to the person who was tortured in
this illegal way without the proven indication for his injury, pain, costs,
Furthermore, no authority or judge in this situation shall support, protect, or uphold any recognizance such that the tortured person cannot legally recover for his injury, pain, costs, and damage—quite excluding his own wrongful acts.
Concerning indication produced by those who dare to soothsay with sorcery
§ 21. No one shall be jailed or examined
under torture upon indication of those who purport to be able to soothsay
through sorcery or other artifice. Rather these pretended soothsayers
and complainants shall in consequence be punished. If, however, the
judge should nonetheless continue to proceed upon such soothsayers' denunciation,
then he shall be obliged to compensate the tortured person for costs, pain,
injuries, and damage, as set out in the previous article.
§ 23. Every sufficient indication upon which it is sought to examine under torture shall be proven with two good witnesses...When, however, the essential element of the crime is proven with one good witness, then this, as a half proof, serves as sufficient indication, as set out below in Article 30 ("a half proof, as when someone is caught in the essential element, etc.") [...]
A rule concerning when the above-mentioned matters of suspicion together or singly suffice as adequate indications for examination under torture
§ 27. In the last article[s] above are found
eight matters of suspicion concerning indication for examination under
torture; none of these matters of suspicion alone suffices as legally sufficient
indication upon which basis torture may be employed. When, however,
more than one of these matters of suspicion concerning someone are found
together, then those persons who are responsible for ordering and conducting
examination under torture shall decide whether the aforementioned or corresponding
matters of suspicion established really provide as much legally sufficient
indication of the suspected crime as in the following articles (concerning
that which singly constitutes legally sufficient indication for examination
§ 29. When someone in the committing of the crime loses something or lets it fall or be left behind, so that it can afterwards be found and determined to have belonged to the criminal, examination under torture is appropriate in order to discover who had the thing immediately before it was lost—unless he interposes something to the contrary, and were it to turn out or be established, the said suspicion would thereby be resolved, in which case this excuse shall first be investigated, before any examination under torture.
§ 30. A half proof, as when someone thoroughly proves the essential element of the crime with a lone good and upright witness (as discussed below concerning good witnesses and witness proof proceedings)—that is and is called a half proof, and such a half proof also constitutes a legally sufficient indication of suspicion of the crime. When, however, someone wants to prove sundry circumstances, signs, indication, or suspicion, he shall do it with at least two good upright and unimpeachable witnesses.
§ 31. When a proven criminal who has had accomplices in his crime informs while jailed against someone who helped him with the crime he committed and was detected at, that is a ground of suspicion against the person so denounced, insofar as there are found and observed in connection with such denunciation the following matters and circumstances:
First: That the informer has not been asked after the denounced person by name under torture, hence has not been particularly examined or tortured with reference to just this person; rather that we have named and himself revealed the denounced person in the course of general examination regarding who helped him with his crime.
Second: It is pertinent that the said informer be particularly questioned as to how, where, and when the denounced person helped him and what relationship he had to him; and in such situations the informer shall be questioned about all possible and necessary details which can, according to the circumstances and character of each individual instance, best serve the subsequent discovery of the truth; and which can not all be described here, but which, however, every diligent and knowledgeable person can himself upon reflection work out.
Third: It is pertinent to inquire whether there is particular enmity, conflict, or ill will between the informer and the person he accuses. Because, were such enmity, conflict, or ill will obvious or revealed, then such accusation against the denounced person would not be believed from the informer, unless he otherwise credibly indicated adequate basis and signs, which would then hod up when investigated and constitute legally sufficient indication.
Fourth: That the person denounced be so suspicious that the accused crime can be believed of him.
Fifth: Where the informer has held to his denunciation, some priest-confessors nonetheless practice the abuse of instructing the miserable fellows in confession eventually to recant upon their truthful statement[s]; to the extent possible, the priest-confessors shall be prevented from that, for no one is authorized to help criminals to conceal their evil, which can disadvantage innocent people and the common weal. When, however, the informer in the end repudiates his denunciation or statement, which he himself has earlier made with great detail; and when it is though that he wishes thereby to abet his accomplices, or that he was perhaps to it by his father-confessor as above discussed; then the informer's statement and the other investigated circumstances must be considered and it must be thereupon decided whether or not the denunciation is adequate as legally sufficient indication. And in such a case it must be noticed and inquired, what sort of association or relationship he has had with the informer.
§ 32. When someone is sufficiently convicted,
as has been previously mentioned concerning a complete witness proof proceeding,
though things he himself has needlessly said out of conceit or otherwise—that
he committed the alleged or suspected crime or that he threatened to do
such a crime before this one happened and the crime actually thereupon
followed within a short time—and he is also the sort of person of whom
such a deed could be believed, that can also be taken as legally sufficient
indication of the crime upon which to examine under torture.
§ 33. When the person suspected and accused
of the murder was seen in a suspicious manner at the time of the murder
occurred with bloody clothes or weapon; or when he has taken, sold, given
away, or still retained property of the murder victim; that may be deemed
legally sufficient indication upon which examination under torture may
be employed, unless he can contradict such suspicion with credible indication
or proof (which shall be heard before any examination under torture).
Concerning sufficient indication of the clandestine having of children and their killing by their mothers
§ 35. When a girl, purportedly a maiden, comes under suspicion of having secretly had and killed a child, it shall be especially inquired, whether she was seen with a large and unusual body, and further, whether the body then became smaller and she was then pale and weak. When such and similar is discovered, and where this girl is a person of whom such a suspected crime could be believed, then she shall be inspected by knowledgeable women in an enclosed place, so far as that facilitates further inquiry; and if the suspicion is there confirmed, and nonetheless she will not confess the deed, she may be examined under torture.
§ 36. When, however, the baby was killed only such a short time before that the milk in the breasts of the mother has not yet gone away, then she may be milked in her breasts; and when mother's milk is found in the breasts, there is in consequence a strong presumption for the use of examination under torture. Since, however, some physicians say that for several natural reasons a woman who has not borne a child may have milk in the breasts, when, therefore, a girl exculpates herself in this way, she shall be further investigated by the midwife or other.
Concerning sufficient indication of secret poisoning
§ 37. When it is found that the suspect bought
or otherwise dealt with poison, and the suspect had quarreled with the
poisoned person or could have anticipated gain or advantage from his death
or was otherwise a wanton person of whom the crime could be believed, that
then suffices for legally sufficient indication of the crime unless he
can produce credible indication that he used or wanted to use the said
poison for other noncriminal ends.
Further: when someone buys poison and denies it to the authorities, and then the purchase is nonetheless proven, then this constitutes a sufficient ground for examining him as to why he used or wanted to use this poison.
Further: all authorities shall everywhere put the apothecaries and others who sell or deal in poison under vow and oath that they shall not sell any poison to anyone, nor allow him to get it, without indication, prior knowledge, and permission of these authorities.
Concerning sufficient indication of theft
§ 43. When the stolen property is found with
the suspect, or when it is discovered that it was, in whole or in part,
possessed, sold, dispersed, or squandered by him, and he refuses to name
his seller or supplier, he has raised a legally sufficient indication of
the crime against himself, so long as he does not establish that he brought
the said property upon himself in an undeceitful, noncriminal manner in
Further: when the theft was accomplished with special lock opening or breaking tools, then when the suspect has been at the very place dealing with such insidious lock opening or breaking tools with which the theft was committed, and the suspect is a sort of person of whom the crime can be believed, examination under torture is to be employed.
Further: when a particularly large theft occurs and there is suspected of it someone who, after the crime, is found to be more effusive with his spending than could be within his means apart from the crime; and when the suspect cannot show other good ground, where he got the indicated suspect wealth, and he is a sort of person of whom the crime could be believed, then there is present against him legally sufficient indication of the crime.
Concerning sufficient indication of sorcery
§ 44. When someone offers to impart sorcery
to other people, or threatens to bewitch someone and such befalls the threatened
person, and the aforesaid person otherwise has associated with men or women
sorcerers, or has employed suspicious things, gestures, words, and signs
such as characterize sorcery, and when, further, the said person has a
bad reputation of similar sort, then that constitutes a legally sufficient
indication of sorcery and is adequate basis upon which to examination under
§ 45. When the suspicion of a crime complained of and denied is established as above provided, and taken or recognized as proved, then a day for examination by torture shall be notified to the complainant upon his demand.
§ 46. When it is desired to examine the prisoner
under torture, either ex officio or upon demand of the complainant, then
the said prisoner shall first, in the presence of the judge and of two
of the court and of the court scribe, be diligently exhorted to speak up,
with words (appropriate to the circumstances of the person and case) best
serving to further understanding of the crime or the suspicion; and he
shall be interrogated under threat of torture, whether or not he confesses
to the alleged crime and what he knows about the said crime; and what he
then confesses or denies shall be transcribed.
§ 47. When, in the case now being discussed,
the accused denies the crime under consideration, then it shall be assiduously
inquired of him whether he can show that he is innocent of the alleged
crime, and the prisoner shall in particular be asked to remember whether
he can prove and establish that at the time the crime under consideration
was committed he was with people or at a place or location whereby it can
be recognized that he cannot have done the crime of which he is suspected.
And such exhortation is thus needed because many a person out of simpleness
or fright, even when he is quite innocent, does not know how he should
proceed to exculpate himself of the thing. And when the prisoner
in this manner or in like-serving way indicates his innocence, then the
judge shall as quickly as possible investigate the exculpation proffered
at the cost of the accused or his friends; moreover, when, with the approval
of the judge, the witnesses which the prisoner or his friends wish in proper
manner to proffer—as hereafter set forth concerning witness proof proceeding
in Article 62 ("Where the accused will not confess, etc.") and in several
subsequent articles—want on their own request to be examined, then the
aforementioned hearing of the witnesses, also of the prisoner and of his
friends on their demand, shall not be denied or disallowed without good
and lawful ground. When, however, on account of poverty, the accused
or his friends cannot bear or suffer such aforementioned costs, then nevertheless,
in order that evil be punished while the innocent be not unlawfully taken
advantage of, the authorities or the court shall put up the costs and the
judge shall proceed with the case.
Further: when in the investigation now under discussion the innocence of the accused is not established, then he shall be examined under torture concerning the aforementioned, established legally sufficient suspicion in the presence of the judge and of at least two of the court and of the court scribe; and that which is revealed in the confession or in his admission and in all [subsequent verifying] investigation shall be particularly transcribed, and insofar as it concerns the accuser, disclosed to him, and at his request a copy shall be given to him without any intentional procrastination or delay.
First, concerning murder
§ 48. When the person examined confesses
the crime under consideration through torture (as above) and his confession
is transcribed, those persons who examine him on account of his confession
shall diligently question him with great care to the extent that it serves
the discovery of the truth (as will be further treated to some extent hereafter);
and indeed, when he has confessed to a murder, he shall be asked the reason
he did the crime, on which day, at what hour, and at what place, whether
anyone helped him to it and who; also where he buried or put the dead man,
with what weapons the said murder was committed, how and what sort of blows
or wounds he gave or inflicted upon the dead man, or how otherwise he killed
him, what the murdered person had upon him by way of money or other things,
and what he took from him, where he put this, or sold, dispersed, parted
with, or hid it; and such questions as in many respects apply just as well
to a robber or a thief.
[When the examined person confesses] poisoning
§ 50. When the person examined confesses
that he poisoned or wanted to poison someone, he shall also be asked about
all the reasons and circumstances (as above), and moreover, what motivated
him to it, also wherewith and how he employed or meant to employ the poison,
and where he got the said poison, and who helped him or advised him to
When the person examined confesses sorcery
§ 52. When someone confesses sorcery, he
shall also be questioned about the causes and circumstances (as above),
and moreover, with what, how, and when the sorcery occurred—with what words
or deeds. Further, when the person examined states that he hid or
held on to something which allegedly facilitated the said sorcery, then
afterwards there shall be an attempt to find it; when, however, the said
sorcery was committed with other things through word or deed, then they
too shall be investigated to see whether they are infected with sorcery.
The person shall also be asked from whom he learned such sorcery, and how
it came about; whether he also employed such sorcery against more people,
and against whom, and what damage thus occurred.
§ 57. When the prisoner denies the previously
confessed crime, and the suspicion is nonetheless manifest (as above),
then he shall be returned to the jail and again examined under torture,
in addition to there being a thoroughly diligent investigation of the circumstances
(as above) to the extent the examination under torture turns upon them—unless
the prisoner adduces such reason for his denial that the judge is persuaded
that the prisoner made the confession in error, in which case the judge
may allow the said prisoner to detail and prove such error.
Concerning the extent of torture
§ 58. Torturing shall be conducted according
to the circumstances of the suspicion regarding the person—much, often
or seldom, hard or lenient—according to the discretion of a good, sensible
judge; and what the tortured person says shall not be taken down or transcribed
while he is being tortured, rather he shall make his statement when he
is released from the torture.
§ 61. When the accused on the basis of such
a suspicion as is deemed [suitable] for examination under torture (as above) has been
jailed and examined under torture and nonetheless is not convicted through
his own confession or through proof of the alleged crime, then the judge
and complainant have notwithstanding incurred no penalty on account of
the aforementioned legal and proper examination under torture, because
the incriminating indication made out gave reason and excuse for the examination
which took place; for the law says that one should keep oneself not only
from the committing of crime, but also from all appearance of evil, of
the sort that can cause ill repute or indication of crime, and he who does
not do that has himself in this way caused his own complaint. And
in this case the complainant shall bear his own costs; and the accused
shall bear his own support [while in jail], since he supplied ground for
his being suspected; and the authorities shall themselves bear the remaining
court costs, for example, for the executioner and other court and jail
attendants. When, however, such examination under torture was employed
in violation of this and the Holy Empire's lawful ordinance, then the said
judges, as causes of such unjust examination under torture, are subject
to punishment, and they shall in consequence suffer punishment and make
recompense according to the law corresponding to the nature and the circumstances
of the violation, and further, shall be brought to account before their
next appropriate authorities.
Concerning unknown witnesses
§ 63. Unknown witnesses shall not be allowed when challenged by the opposing party unless he who proffers the witnesses proves in essence that they are upright and without evil repute.
Concerning paid witnesses
§ 64. Paid witnesses are also to be rejected and disallowed and criminally punished.
How witnesses shall testify
§ 65. Witnesses shall testify from their own true knowledge, declaring the detailed grounds of their knowledge. When they would testify to hearsay, however, that shall be treated as inadequate.
Concerning adequate witnesses
§ 66. Adequate witnesses are those who are without evil repute and who otherwise are unchallengeable for any legal ground.
Concerning acceptable evidence
§ 67. When a crime is proved with at least two or three credible good witnesses, who testify from a true knowledge, then there shall be process and judgment of penal law according to the nature of the case.
Concerning false witnesses
§ 68. When witnesses are discovered and convicted of having brought or having intended to bring criminal sanction upon an innocent person through false and wicked testimony, they have incurred the penalty which they wanted to bring upon the innocent person through their testimony as above.
When the accused will not confess following the proof
§ 69. When the accused still will not confess after sufficient proof, it shall be declared to him that the crime is proven of him, in order that his confession can be secured that much easier; and when, notwithstanding, he persists in not confessing, although (as above) it has been sufficiently proved of him, then he shall nonetheless be condemned on account of the proven crime without any examination under torture.
[Articles 70-76 regulate the taking of witness-testimony]
§ 78. When the complainant moves for a final
court date upon the basis of the accused's confession or of witness-testimony
presented and adduced and completed (as above), then this shall be set
for him without delay. When, however, the complainant does not want
to move for a final court date, then the said final court date shall also
be set upon the motion of the accused.
Concerning the sitting and the ceremonial bell-ringing of the final court
§ 82. On the day of court at the arrival
of the customary time of day, the criminal court shall be called to session
with the customary bell-ringing, and judge and judgment-givers shall proceed
to the court place where it is regular for the court to sit according to
good custom, and the judge shall have the judgment-givers be seated and
he shall also sit, having his staff or his bared sword in hand, according
to the territorial tradition of each place, and he shall remained seated
in a dignified manner until the end of the proceeding.
Concerning the judge's question whether the court is properly staffed
§ 84. When the court has thus seated itself, then the judge shall ask each of the jurors (Schöffen) individually: "N., I ask you whether the final court is properly staffed for criminal proceedings." When the said court is staffed with not less than seven or eight jurors, then each juror shall answer: "Lord judge, the final criminal court is properly staffed according to the Emperor Charles V's and the Holy Empire's ordinance."
When the accused shall be publicly put in the stock, pillory, or iron collar
§ 85. When the sentence to penal sanction is finally decided against the accused, then before or after there shall be maintained (where it is customary) the practice of putting the culprit publicly in the market or square for some time in stock, pillory, or iron collar.
Leading the accused before the court
§ 86. Afterwards the judge shall command that the accused be brought before the court by the executioner and court attendant, well guarded.
Concerning the ceremonial denunciation of the accused
§ 87. The ceremonial denunciation (beschreien) of the accused at this stage in the presence of the complainant and upon his demand shall be retained according to the good custom of each court. When, however, the accused is held innocent because the complainant does want to carry on with the judicial proceeding, and nonetheless the accused demands the proceeding, the this ceremonial denunciation is not requisite to it.
Concerning advocates (Fürsprechen)
§ 88. Complainants and respondents shall
each upon their demand be allowed an advocate from among the court, and
these shall by their oaths promote justice, truth, and the system of this
our statute and in no harmful way knowingly or willfully hinder or misrepresent
it—this shall be commanded of them by the judge upon their obligation;
moreover, the said juror who has thus been the advocate of the complainant
shall abstain from the concluding of the judgment, although the remaining
judge and jurors shall continue. Indeed, it shall be left to the
wishes of the complainant and accused to take their advocates from among
the jurors or from elsewhere or to speak each for himself; however, when
someone takes a speaker from outside the sworn jurors of the court, the
said advocate shall beforehand swear to the judge so to conduct his speech
as is set forth above in this article concerning advocates taken from among
Further: in the next and following article concerning the complaint, the advocate shall insert in the first place the name of the complainant where an "A" appears, and for "B" the name of the accused; further he shall for "C" indicate the crime in the briefest fashion, be it murder, robbery, theft, arson, or other, in the way each crime is named. And it is to be plainly noticed when a complaint is made ex officio that invariably in such a complaint there shall be said in place of the name of the complainant: "Complaint of the authorities ex officio."
What and how the accused may plead through his advocate
§ 90. When the accused has previously confessed
the crime in an incontrovertible manner, or it has been sufficiently proved
of him [...], then he may do nothing other than plead for mercy or let
it be pleaded for him; when, however, he does not confess or when he admits
the alleged deed but brings forward thereto the sort of grounds by which
he hopes to be exculpated from penal sanction, then he shall have pleaded
through his advocate as hereafter follows.
Further: where in the now following article a "B" stands, the accused shall be succinctly named and understood; where "A," the complainant; and where "C," the crime complained of.
"Lord judge: B, the accused, responds to the alleged crime of C, which it has been alleged through A as complainant that he is said to have committed, in every detail as he has previously responded and has sufficiently adduced. And he prays that you earnestly judge all the proceedings and writings relative to the said complaint and relative to the response in the manner in which all that has heretofore been sufficiently brought out and brought forward in the estimable and lawful criminal courts ordinance of Emperor Charles V and of the Holy Empire; and he prays that on the basis of his revealed innocence he be declared innocent with final judgment of the law, together with reimbursement of the court costs incurred, and that the complainant, in accord with this imperial criminal courts ordinance, be bound to final process before the (as above indicated) regarding punishment and compensation.Further: when the designated advocate cannot make this aforementioned response and plea orally, he may submit it to the court in writing and say the following:
"Lord judge: I ask that you might let your scribe read out the response and plea of the accused from the sheet of paper submitted."Upon such a prayer the judge shall command the scribe to read out the said submitted sheet.
Concerning the denial of a crime which has previously been confessed
§ 91. Should the accused at the final court date deny the crime which he has in fact previously confessed properly and incontrovertibly; and further, when the judge on the basis of this confession has discovered so many different circumstances that such a denial is only to be taken as obstructive of justice [...], then the judge shall inquire on oath of the two commissioned jurors who with him heard the said confession read out whether they heard the confession read out. And when they say "yes" ["no"?] to that, the judge shall always seek advice of the legally knowledgeable or others at those places hereafter indicated; and because such jurors in this case act not as witnesses but as co-judges, they shall not therefore be excluded from the court or from the judgment.
How the judges and jurors or judgment-givers, following the submissions of both sides and everything else and also following final decision, shall formulate the judgment; and how also the jurors or judgment-givers shall be questioned by the judge
§ 92. After both sides have made their submissions, and after everything else has been brought up, and after these matters are finally decided, then the judge, jurors, and judgment-givers shall take up with diligent consideration and deliberation everything which was submitted to and done before the court, and shall thence [...] have formulated in writing the most appropriate and even-handed judgment; and when the judgement has been so formulated, the judge shall thereupon ask: "N., I ask you the law."
Whereupon the jurors and judgment-givers shall forthwith answer in this way
§ 93. "Lord judge: It is my judgment which has been formulated in writing as judgment, upon the ground of all which has been brought before the court and dealt with there (lawfully according to the court ordinance) and upon the ground of sufficient consideration of all that which has been asserted."
How the judge shall announce the judgment
§ 94. Upon the above-discussed decision of the jurors and judgment-givers the judge shall have the final judgment which has been formulated in writing publicly read out by the sworn court scribe to both parties; and where penal sanction has been decided upon, it shall be properly announced how and to what extent this shall occur to body or life, as is found and set forth below concerning penal sanctions in Article 104 and in several pages thereafter. And how the scribe shall formulate and transcribe such judgments which it is appropriate to proclaim and read out (as above set out), that is to be found below in Article 190.
§ 95. The speech just regulated, which is to take place in court, is framed in terms of a complainant and a respondent. But it is particularly to be noticed where more than one complainant or one respondent stand before the court, the same words shall be used with concern to the way several people are spoken of.
When the judge shall break his staff
§ 96. As the accused is being finally condemned to penal sanction, the judge shall break his staff (in those places where it is custom), and he shall turn over the miserable fellow to the executioner, and command the executioner by his oath faithfully to carry out the judgment delivered; then he shall rise from the court and see to it that the executioner carries out the sentence pronounced under adequate security conditions.
Concerning proclaiming of the executioner's peace
§ 97. When the judge has broken his staff after the final judgment, and when, further, the executioner has brought the miserable fellow to the place of execution, the judge shall have publicly proclaimed and announced—and ordered by the authorities on pain of body and property—that the executioner is under no circumstances to be hindered, likewise that no hand is to be laid upon him should he bungle.
Question and answer following execution of a judgment
§ 98. When the executioner asks whether he
has carried out the judgment properly, the said judge shall reply to the
question in this manner: "Because you have executed as judgment and law
provided, I now put the matter to rest."
Concerning [religious] confession and admonition after the condemnation
§ 102. After the condemnation of the miserable
fellow to death, he shall be allowed [religious] confession a second time,
and there shall also be at least one or two priests alongside when he is
led out or dragged out, who shall admonish him to the love of God, to proper
faith and trust in God and in the sacrifice of Christ our Savior, and also
to the repentance of his sins. Further, a crucifix may always be
carried in front of him when he is led before the court and led out to
A preamble concerning how crime shall be punished
§ 104. When, according to our common written
law, someone has forfeited his life on account of a crime, he shall be
condemned and executed in the form and manner appropriate to good usage
or to the disposition of a good, legally knowledgeable judge who can rule
upon the circumstances and seriousness of the crime. But in those
cases (or similar ones) in which our imperial law does not provide or authorize
someone to be sentenced with death, we have also in this our and the Empire's
ordinance imposed no death penalty, but instead, for some crimes which
we have authorized the law to punish upon body or member such that the
person punished nonetheless remains alive. Such penalty may also
be imposed and employed, according to the good custom of each territory,
or moreover, in the discretion of a good knowledgeable judge, as is above
said of death penalties, if our imperial law imposes some punishments which
are importune according to the circumstances of the time and of the territory
and to some extent cannot be well employed according to the letter; further,
when this same law does not declare the form and extent of every punishment,
rather enjoins resort to good custom or to the decision of a wise judge
and provides for his discretion, the penalty is to be set and handled according
to the circumstances and seriousness of the crime, from esteem of justice
and for the sake of the common weal. But it is especially to be noticed
that, in those (or similar) cases where our imperial law inflicts or provides
absolutely no punishment to life, honor, body, or member, judge and judgment-giver
are to punish no one in a contrary manner, by death or otherwise.
And in order that judges and judgment-givers who are not learned in such
law may, in deciding upon such punishment, act that much less against the
said law or against good and permissible custom, there is below set out
regarding some punishment when and how the said law shall operate in accord
with good custom and reason.
[There follow punishments for specific crimes, including blasphemy (106), perjury (107), "breaking of sworn recognizance" (108), sorcery (109), criminal libel (110), counterfeiting (111), falsification of documents (112), falsification of weights and measures (113), disturbing boundary signs (114), lawyer's malpractice (115), "immoral sexual relations against the order of nature" (116), incest (117), kidnapping (118), rape (119), adultery (120), bigamy (121), selling one's wife or children into immoral sexual traffic (122), pimping (123), treason (124), arson (125), robbery (126), sedition (127), living "wickedly...outside the law" (128), feuding (129), homicide in various degrees (130-156), theft in various degrees (157-175), aiding and abetting (177), attempted crime (178), crimes committed by juveniles (179), abetting escape (180)]
[The remaining clauses regulate how court proceedings are to be transcribed (181-189); how court scribes shall formulate the final death sentence and how it shall be decreed, depending on the form that punishment will take (190-199); how a finding of innocence shall be decreed (199-201); how court decisions should be preserved (202); how court costs should be assessed (204-205); the disposition of the property of criminal fugitives (206); the disposition of stolen or robbed goods which come into the court (207-214), and maintenance of gallows (215-217). The code ends with a clause on "abuses and evil senseless customs" (218) and a recommendation that courts seek legal advice in dubious cases from superior courts and university law faculties (219)].
End of the criminal courts [ordinance].