108 But was it sufficient? Clearly not, for it was not completely trustworthy. Whether a person arrived at a moral certitude depended on various factors, such as his way of thinking and his digestion. The same piece of evidence might, thus, produce a different effect on different people. Besides, allowing the judge to decide a case on the basis of a moral certitude would only entail serious dangers of arbitrariness to the personal liberty and honor of the citizens. Therefore, additional safe-guards were needed.'® For Filangieri, the moral certitude of the deciding judges of fact had to be combined with the requirement of legal proof. The rules of proof were essentially based on the ius commune theory, with some modifications. Two witnesses made up full proof; so did an authentic document proving the crime and the identity of the criminal. Significant parts of Filangieri’s theory departed, however, fromthe ius commune statutory theory of proof. In Filangieri, the defendant was not allowed to speak except to defend himself. A confession as such did not exist for the Italian philosopher; the matter of the accused’s guilt was not to any extent at his disposal. Furthermore, although one indiciumnormally*^ did not suffice for full proof, two or more pieces of circumstantial evidence could, contrary to the ius commune theory, add up to full proof if each one of themwas proved by two testimonial witnesses and if the indicia, independently of each other, concurrently proved something on the main evidential theme. Naturally enough, there was no place for poenae extraordinariae in the theory. For Filangieri, the rules of witness exception in the Roman-canon law of proof were excessively detailed and had often led to the need to use poena extraordinaria. Therefore, witness testimonies had be allowed more liberally. Filangieri initiated a strand of criminal procedural theory typical of hourgeoisie thinking under absolutist rule. In Filangieri, the bourgeoisie and the ruler were connected to each other by the jury: the prince chose the magistrates who then selected citizens with sufficient wealth as jurymen. As for the theory of evidence, an element of free evaluation - a moral certitude - was introduced to avoid false judgments. For Filangieri, having tw'o witnesses did not suffice for a conviction, if they turned out not to be able to convince the judge. The framework of absolutism and a typical late eighteenth-century mistrust towards the arbitrariness of a professional judiciary was reflected in Filangieri’s unwillingness to bestow upon the judges the right freely to evaluate evidence. Because of this, he arrived at a combination theorv, the negative theory of proof. Fromthe point of view of the bourgeoisie, the best of both theories was thus combined as a safeguard against judicial arbitrariness.-' Ibid. pp. 219-220. The “necessary” indicia are an exception; for instance, a carnal relationship with a man can be concluded from the pregnancy of a woman. Ibid. pp. 243-244. Ibid. pp. 232-247, 348-350. ■2' In many ways, a striking parallel can be observed between the negative theory of proof and the formation of a so-called “sana cri'tica” theory of proof (although changed, still prevalent in the
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