203 a half proof or more than a half proof was a matter not governed by rigid rules. Just exactly how much evidence was required to add to “a half proof,” “more than half a proof,” or “almost proven guilty” was not determined abstractly, but case by case. No exact or all-encompassing rules were given to aid - or to bind - the courts in their evaluative activity, neither by the sparse legal writing nor by precedents of the higher courts. The case material shows the departures fromour lawof proof during the period of legal proof: the basic requirement of full proof in the form of two eyewitnesses or the defendant’s confession was by no means absolute. In cases with very strong evidence yet short of full proof - such as an eyewitness not under oath or an incomplete confession - courts would regularly arrive at a conviction even during the era of legal proof. The lower the court instance, the more pronounced this tendency was; even the JDS quite regularly took recourse to conviction without legal full proof. The legal rules of proof provided by the PS of the Law of 1734 were, in the first half of the nineteenth century, generally diligently observed by the high courts and the JDS, but in certain cases in which the circumstantial evidence seemed persuasive enough to the upper instances, they — high courts somewhat more often than the JDS - did not hesitate to make convictions. The lower courts, however, had a practice of their own: although they followed the rules of proof rather strictly insofar as petty crimes were concerned, with homicides they commonly decided on conviction without full proof. In all instances, central categories of full proof - the requirement of confession or two eyewitnesses - were interpreted liberally. Nevertheless, the first half of the century still ought to be considered as part of the period of legal proof —first, because the higher courts in the great majority of cases observed the theory of statutory proof; second, because the socalled middle categories of decision were widely used; and third, by the formulation and wording of the court records, it becomes clear that the judiciary felt a need to dress the decisic')ns in a formrequired by the law. In the 1850s, an obvious transformation took place in the courts’ attitudes towards matters of proof. Quite rapidly, what in the first half of the century was the exception - conviction on less than full proof - now became a rule. Soon thereafter, the use of the middle categories of sentence fell into oblivion. By the 1870s courts were convicting on pure circumstancial evidence. Fromthe point of viewof the law of evidence, the adoption of the free evalnation of evidence means, first, that the selection of decision types narrows down to two, acquittal and conviction, as conditional acquittal, absolutio ab instantia, and confessional imprisonment gradually fall into disuse. Moreover, as the higher court practice defacto draws closer to the lower courts’ practice, an overall standardization, and thus modernization, of court practice is seen to take place.
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