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# {2-724.} Judicial Reforms

Judicial reforms encompassed both the organization of the judiciary and criminal law. With regard to the former, first step was taken on 12 March 1783, when the Gubernium was designated as the highest court of appeal (Supremum Forum Superrevisorium). Ordinary lawsuits that previously had been dealt with by the Gubernium now had to be directed to lower judicial forums. In April 1784, the Gubernium also became the appellate court for suits involving the mining sector.

The creation in 1786 of administrative districts, headed by commissions, brought with it a modification of the judiciary: in their capacity as delegati perpetui of the emperor, the district commissioners exercised the power of pardon in lawsuits that did not concern noblemen (and did not involve high treason, disloyalty, or the disturbance of public order). Death sentences that had been confirmed by the district commissioners had to be referred to the chancellery for review.

A more significant change, introduced on 30 November 1786, was the creation of county courts and district courts of appeal (tabulae districtuales). Criminal prosecutions (apart from cases of treason and disloyalty) came under the jurisdiction of fora subalterna at the county level, as did lawsuits initiated by free commoners. The appellate courts at the district level heard appeals in criminal cases involving commoners; they also functioned as the court of first instance in civil suits initiated by noblemen or by free commoners who were not subject to civil or seigniorial authority. The royal appellate bench heard all appeals, criminal and civil, from noblemen, civil appeals from commoners, and appeals issuing from the surviving manorial courts (after the county fora subalterna had verified that the latter followed prescribed procedures).

Although the reform aimed to simplify and rationalize the judicial system, the need to accommodate a stratified social structure {2-725.} and traditional institutions imposed many a compromise. Nor could another goal, the separation of judicial and administrative functions, be fully realized in Transylvania. There was much overlap between the two, all the way from the county level to the Gubernium and the chancellery.

The reform of criminal law also fell short of expectations. As a first step, the death penalty was abolished by Joseph II on 30 October 1786. According to legal historians, the monarch was moved less by humanitarian considerations than by the mercantilist principle that prosperity is a function of population growth, and by the view (propounded notably by the Marquess of Beccaria) that prolonged suffering is a better deterrent of criminal behaviour than a brief, sharp pain. Indeed, it was claimed in the decree that a long prison sentence, with or without hard labour, has a more lasting impact on public opinion than a death sentence. An official, public report casts interesting light on the practical consequences of abolition. Of the forty-six convicts who had been assigned to tow a boat to Pétervárad, only twenty-two reached that destination twelve days later; twenty died on the way, and four dropped out due to illness. The truth may have been distorted to heighten the deterrent effect, but it is clear that prolonged forced labour often had the same practical effect as a death penalty. In any case, the Josephinist, imperial penal code that was introduced, in 1787, in Transylvania did not exclude the death penalty in all cases.

The code classed punishable acts in two categories: crimes ('capital offenses') and offenses. The distinction was obviously based on the gravity of the act, and the code reflected the spirit of the Enlightenment in attributing great weight, in both categories, to the factor of premeditation; it elaborates on extenuating circumstances and lays down that only wilful acts deserve punishment. The code qualified the terms of the abolition decree issued in October 1786, retaining the death penalty for crimes subject to {2-726.} summary proceedings. (Since the code made no reference to martial law, it is likely that the death penalty was retained in that sphere.) Lesser sanctions included imprisonment with or without forced labour, the chaining of prisoners, and, in addition, caning, whipping, or flogging; judging from the prescribed level of punishments, prisoners were not likely to survive most of them. Given the conditions of incarceration in Hungary and Transylvania, a few years' imprisonment was tantamount to a death sentence. The prescribed sentences to forced labour ranged from 5–8 years to 30–100 years.

The new penal code thus followed the principle that long sentences have the greatest deterrent effect. Acts of treason and disloyalty incurred the longest sentences to forced labour; hanging was reserved for acts of rebellion (and for those who failed to report such acts). The prescribed sanctions were comparatively light for crimes against individuals and their property, including burglary, and harsh for counterfeiters; the forgers of bonds were to be sentenced to the longest period of forced labour. The code prescribed heavy penalties, ranging from 15–100 years imprisonment and 8–100 years forced labour, for various types of manslaughter and murder, but it allowed for extenuating circumstances and distinguished between acts of justified and unjustifiable self-defence. For other acts of violence — abortion, the abandonment of children, physical assault, mutilation — the sanctions ranged up to 5–15 years imprisonment. The penal code did not sustain the medieval view that suicide was a crime; it provided only for posthumous excoriation of those who killed themselves to escape punishment. Unsuccessful suicides were to be taken into protective custody and released only when, through reeducation, they had come to understand their obligation to self and country. Among crimes against liberty and human dignity, kidnapping was considered the most {2-727.} serious, incurring 15–30 years of imprisonment. The same penalty applied to those who engaged in recruiting soldiers for a foreign country (unless their act was dealt with by a military tribunal). Among crimes against property, looting and arson incurred the heaviest retribution: 15–100 years of forced labour in the case of the first, and 12–100 years for the second. The code did not provide for limitation in the prosecution of crimes.

Apart from imprisonment, forced labour, and physical punishment, the code also provided for banishment from a particular locality, for up to 15 years. Those who violated disease-control regulations were to be tried in a military court. The authors and disseminators of libelous lampoons were to be sentenced to varying lengths of imprisonment; it was considered an aggravating circumstance if the target was of unimpeachable character, a high official, or of noble rank. The code reflected the spirit of the Enlightenment in treating blasphemy as a mere offence rather than a crime; it prescribed no punishment, but provided that the blasphemer be held in a mental institution until he showed signs of recovery. A similar leniency prevailed in the case of disturbance of religious services of the official and tolerated denominations and of the profanation of churches, acts that were to be punished with short prison terms. The punishment for crimes of a sexual nature was determined by the degree to which they provoked a public scandal; one of the sanctions was banishment.

Thus the imperial criminal code of 1787 was marked by a blend of enlightened principles and ruthless rigor. The central authorities kept close watch over the limitation of the death sentence, but otherwise it is difficult to determine whether the tendency was toward moderation or rigor in the application of the code in Transylvania.