119 of secrecy and written forms, remained intact and still had its followers in the second half of the nineteenth century. At this point, however, there was no return to the strictly legal theory of proof.*^ The spokesmen for the legal rules of proof developed an Indizienlehre, by way of which full proof could be obtained even without “direct” evidence if a certain requisite was at hand. The development of Indizienlehre marks an important landmark on the way to the free evaluation of proof. Among the last influential writers advocating a legal theory of proof in the 1800s were Carl August Tittman and Karl von Grolman. Their theories of proof are, for the most part, traditional and loyal to the system of statutory proof.5 Nevertheless, although not expressing this theory in terms of a negative theory of proof, Grolman insists on the necessity of the judge’s personal moral conviction. His definition of “unvollständige Beweis” goes to prove this: “Der unvollständige Beweiss giebt zwar Erkenntnissgriinde fiir die Wahrheit eines Beweisssatzes an, ohne jedoch voile, moralische, oder juridische, Gewissheit zu bewirken.”^ So, for a proof to be complete, it needs to be not only “legally” but also morally convincing. This idea is expressly formulated in the negative theory of proof. Typically for the doctrine of the beginning nineteenth century, Tittman and Grolman allow the indicia to add up to full proof. Tittman argues expressly against the traditional view according to which a death penalty could never be based on circumstantial evidence alone; instead, only poena extraordinaria could be used.^ One indiciumdoes not suffice, however; there have to be several that coincide with other circumstantial evidence or witness statements. Furthermore, as in the ins commune generally, the indicia have to be “fully proven themselves.”^ For Grolman, in carder for circumstantial evidence to constitute a full proof, it needs to be “compelling” (“eine nothwendige Zusammenhang zwischen den combinirten Umständen und demBeweisssatze”).'^ Despite giving up the strict statutory theory of proof, the Indizienlehre of Grolman and Tittman meant no abrupt break from the statutory theory of ■* The critics of the statutory theory claimed that the old theory, with its abstract rules, prevented the judge fromarriving at the “historical truth”; instead, the decision-making concerning facts had to be based on the merits of the individual case. Furthermore, doubts were raised as to whether the statutory theory was reallv able to prevent the subjective judgments of the judge from intervening his decision-making. Koch 1994 p. 248-249. ^ See Tittman 1824 pp. 472—546; Grolman 1825 pp. 448—491. Grolman 1825 pp. 450, 490. ^ Among the spokesmen of the traditional view, Tittman mentions, for instance, Quistorp. Tittman 1824 pp. 550-551. ^ In Tittman, fulK' proven indicium proximum is worth a half proof. Several such pieces of evidence make up a full proof, when “man ihr Zusammentreffen und ihre Verkettung nach vermuthlichen Griinden nicht anders als durch die Wahrheit der Vermuthung erklären kann.” Ibid. pp. 551-555. 9 Grolman 1825 pp. 474, 479-481.
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