16 This goes for the law of proof as well: more than anything, the Romancanon law of proof was based on the texts and legislation of the Imperial period. There is an obvious reason for this: in the post-classical Rome, the concentrating imperial power assumed a much tighter control over its Judiciary than had been the case in the classical Rome. The courts of the classical Rome, quaestionae perpetuae, until the middle of the second century had evaluated the proof freely, and the principle of publicity had prevailed; in the Imperial period, impediments to free evaluation arose.Understandably, it was thus that the medieval ecclesiastic and secular administrations, eager for centralization, could make the most use of the procedural law of the latter period. But the Roman-canon law of proof was no direct reception of the Imperial law. Taking Roman normfragments as the basis of their work, the medieval canonists and legists proceeded to construct a legal edifice in which their own creative input, inspired by scholastic philosophy, was considerable. At least when referring to the lawin the Middle Ages, we have every justification for calling the novel law of proof “canon” as well, for it was essentiallv for the practical needs of the “Papal Revolution” that the newsystemof proof, together with other novelties of Roman-canon law, was erected after the ordeals had been abolished by the decision of the Lateran Council in 1215.'® The problemwith the termRoman-canon lawof proof is in its awkwardness when the term, detached from its ecclesiastical origins, is applied to the legal orders of the Protestant countries after the Reformation. To label the theory “statutory” or “legal” - here, these two terms are used interchangeably - carries problems of its own. Firstly, the law of proof that surpassed the ordeals was originally a product of legal science, not of the contemporary written legislation'9; in Sweden, it was adopted by judicial practice and legal science. Only afterwards was it then incorporated into written statutes, such as the German Carolina of 1534, the French Ordinance of Villers-Cotterets of 1539 or the Swedish Law of 1734. Secondly, to fully appreciate the wealth of detail pertinent to the theory, we almost always need to look at the juristic writingor It is not known for certain whether more than one witness were beginning to be required in the criminal procedure of the Principat. Judging by the spreading of judicial torture- which could not be aflicted on free citizens under the republic it seems probable, however, that a minumum of proof was required. Mommsen 1895 pp. 405-406, 435-436, 440; Kunkel 1974 p. 23; and Walter 1979 pp. 18-22. However, one ought to be aware of the dangers of inflicting relatively modern ideas and terminology, such as “free evaluation” or “legal proof,” on Roman law. Levy 1965 pp. 137-138. The question of whether Roman-canon procedure arose independently in secular and ecclesiastical courts or whether it spread to secular courts thourgh the mfluence of canon law remains unclear and cannot be decided here. Contrarv to older literature (Schmidt 1965 pp. 86-99), recent research (Trusen 1984 and Landau 1993 p. 55) seems inclined to stress the influence of the church courts. See also Échappé’s (1994) analysis of the biblical citations included in the Ordo iudiciarius Rhetorica ecclesiastical one of the first doctrinal interpretations of Gratian’s Decretum. Carbasse 1990 p. 139.
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