Bambergische halszgerichts Ordenung

Mainz: Johann Schöffer, 2 April ("Uff Mitfasten"), 1508. SECOND EDITION (1st ed. 1507) of a "milestone and turning point in the development of German criminal law" (E. Wolf). Hardcover. Fine. Bound in fine blue morocco by the Belgian binder Charles De Samblanx (1855-1943), boards richly tooled in gold, framed by three fillets and stippling. With a large central ornament and further ornaments at the corners. Fine red morocco doublures, also richly tooled in gold. Spine ruled and tooled in gold, a.e.g. The text is in excellent condition, lightly washed but without fading to the text or woodcuts. Extremely rare. In North America, there are 3 copies of the 1507 ed. (Harvard, Library of Congress, Colorado College) and 6 of the 1508 ed. (Grolier, Yale, Harvard, Library of Congress, Colorado College, Michigan).

The text is illustrated with 22 large woodcuts (based on those in the first edition designed by Wolfgang Katzheimer) showing torture devices, court proceedings, a prisoner being coerced (by torture) into confessing his crimes, an inquest showing a murder victim with a dagger protruding from his chest, a procession to the scaffold, the field of execution, where condemned men appear, attended by a priest; one kneels before the executioner (who readies his sword), another is bound naked to a wheel and hoisted aloft; a third man has already been decapitated. On the title verso the author is shown presenting his work to the emperor. The "Bambergische Halsgerichtsordnung" or (Latin) "Constitutio criminalis Bambergensis" is a ground-breaking treatise on criminal and procedural law written by the Franconian knight and lawyer Johann von Schwarzenberg (1463-1528) in his capacity as president of the bishop of Bamberg's judicial tribunal.

The Bambergensis provided clear, uniform standards to be followed in place of the myriad local practices that often had little basis in established law. It regulated the procedures of investigation and the presentation of evidence, clearly defined criminal offenses, and set corresponding penalties. In this way it succeeded in increasing legal certainty by combining court procedure and a substantive body of criminal law into a unified whole. The "territorial" Bambergensis would ultimately serve as the basis for the 1532 imperial "Constitutio Criminalis Carolina", which retained its validity until the end of the old empire in the Napoleonic era.

The book covers a wide range of legal matters, starting with judicial oaths, the selection of witnesses, and the reliability of evidence, before proceeding to weightier issues such as the investigative process "peinliche Befragung" (which included the use of torture), and the trial itself. There is a catalogue of crimes and their punishments (many capital in nature), a detailed list of monetary compensations for all persons involved in the legal process, and a brief exhortation on the moral dangers of judicial corruption.(Timmermann)

The Bamberg code incorporated ideas developed in the Italian schools of law, among them the principle of inquisition, which made confession central to conviction and provided for the use of torture to procure it. Torture was limited based on the age or health of the accused but could be applied for a broad range of alleged crimes. Article 43, for example, allows for the torture of those suspected of secretive abortion or infanticide.

The Need for The Bambergensis:

"The movement for legal reform [in Germany] emerged from the confused state of German legal practice around the turn of sixteenth century. Germany's reception of Roman law was already in progress, bringing book-learning imported from Italy to replace the lay decision making of traditional German justice. Along with this shift toward professionalization went increasing governmental responsibility for prosecuting crime, and increasing adoption of the Roman inquisitorial model in place of the traditional suit brought by injured parties. But while governmental structure and action increasingly followed the Roman model - with investigation of crimes by public officials and use of torture to extract confessions - the legal expertise that was supposed to accompany these procedures was still rare. Not only did local courts have a long-standing right to judge independently according to their own conception of law; but also the developing class of experts, trained in the Roman and canon law taught at universities, tended to focus on the more pleasant and lucrative civil law rather than on criminal matters. Complaints about arbitrary and abusive application of criminal laws multiplied. By the late fifteenth century imperial diets were focusing their attention on the problem and passing resolutions for reform.

"The cause of judicial regularity and rational standards was taken up by Johann von Schwarzenberg. His "Bambergische Halsgerichtsordnung", published in 1507, became a widely used manual even without imperial sanction, and much of it was incorporated verbatim into the imperial code of 1532 (the "Constitutio Criminalis Carolina"). Like the later Carolina, the Bambergensis was directed against abuses caused by the legal ignorance of local court personnel, setting itself the task of informing unlearned practitioners about the rules of law. Though the thrust of the code draws heavily on Roman principles, Schwarzenberg himself had not been to law school and, by his own account, did not even read Latin. Rather, he was a living example of lay assimilation of learned standards. A nobleman who rose in the traditional way, he drew on his experience overseeing courts in Bamberg and on what the legal experts could teach him. He combined these elements into clear and direct vernacular expression, with a skill he later exercised in various literary genres. The publication of the Bamberg code even included woodcuts to appeal directly to the unlearned. Like his law code, Schwarzenberg moved into imperial politics in the 1520s, participating at meetings of the Reichstag where early versions of the Carolina were drafted. Even before its involvement in imperial affairs, the text that became the Carolina had a more basic goal: the educative and persuasive goal of in­culcating common principles of law."(Wiltenburg, The Carolina Penal Code of 1532, Renaissance Quarterly , Autumn, 2000, Vol. 53, No. 3, pp. 713-734)

Instruments of Torture:

A number of the illustrations demonstrate methods and instruments of torture and coercion. On the title page (and repeated again in the text) is a full-page woodcut showing instruments of torture and execution. These tools fall into three groups: (1) torture instruments used during the judicial investigation (hoisting device with a stone weight, also known as the 'trockener Zug', shackles, and thumb screws); (2) utensils of minor corporeal - and psychological - punishment (stocks, a brush whip, pillory, and pincers - the last of these for the extraction of tongues at the pillory);(3) instruments for capital punishment: sword, wheel, stake, gallows, a platform for beheadings and eviscerations known as the 'Rabenstein' or 'Kopfhausel', literally 'ravens' stone' or 'little house of heads', pincers - heated red-hot and sometimes used to tear the flesh off the poor sinner's body en route to the scaffold.(See Timmermann, "Locus calvariae", p. 140)

Judges as Blind Fools:

One of the final woodcuts in the Bambergensis shows a tribunal in which the judges are all shown as blind-folded fools (with their tell-tale fool's caps). The caption reads "Bamberg's penal code explained that folly was not external to the tribunal but actually seated on the benches where some crazed judges had been substituted for the solemn figure of Justice. The caption ('To judge on the basis of wrong practices opposed to the law is the way of these blind fools.') explained of what folly and blindness consisted: the obstinacy of unfit judges who wanted to continue to administer law in line with customary norms, as opposed to the true law."(Prosperi, Justice Blindfolded, p. 38).