118 many. Some of the choices, such as the legal theory of proof, were a thing of the past; others, like the free evaluation of evidence, were novelties sustained from one side by the rise of the legal profession, and from the other, by the emerging liberalism. In this study, reasons as to why certain writers opted for the free evaluation of evidence, others for the legal theory of proof, and yet some for the negative theory, or why some preferred professional judges to juries, or vice versa, cannot be given. Neither would I even imagine presenting any complete picture of the abundant German literature. My aim is much more modest than that, and it is a comparative one. The comparative hypothesis that my study on Germany will yield is that the particular German social and political situation of the first half of the nineteenth century gave rise to various possibilities of development, to many more than could have been imagined in France of the late 1700s, or in nineteenth-century Finland. It w'as due to the specifically German social and political constellation that the jury alternative came to triumph after theFrankfurter Nationalversammlungin 1848. In Finland, as we will see later, a considerably more limited choice of alternatives was available. The Negative Theory of Proof: with or without Laymen in Court? Although not the beginning of the dismantlement of the statutory theorv of proof,^ the abolition of torture by Frederick the Great in 1740 had proved an important milestone on the way to the freedom of evaluation of evidence. The prohibition of torture had caused complaints fromjudges who now found it more difficult to find the necessary full proof. Therefore, some began to interpret the law so that since torture was now abolished the rules of proof were not valid either. Gradually, rules allowing more weight to circumstantial evidence were introduced, and these rules were brought to the legislative level in many German states in the first three decades of the 1800s.- In these statutes, rather strict rules were given as to how many indicia of which kind were needed. In practice, these requirements proved hard to meet.^ Other “rcmedies,” treated in more detail above, were Ungehorsamstrafe and Liigenstrafe. These punishments, always milder than those prescribed by statute, were given on the basis of circumstantial evidence when full proof was lacking. They were, thus, another variant ofpoena extraordinaria. Despite the lethal blows that the statutory theory of proof had suffered from all sides in the seventeenth and eighteenth centuries, the theory, with principles ' Langbein 1976 pp. 45—60. - Mittermaier 1834 pp. 21-24. Schwingc 1926 pp. 81-82; Krietcr 1926 p. 8; Stichweh 1994 p. 270.
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