30 as it was on eyewitness statements, the statutory theory did not even claimto produce any information on the movements of a defendant’s soul. In the last instance, those were left for God alone to observe. It was only in the nineteenth century, with the breakthrough of free evaluation of evidence, that human judges ventured to invade this domain reserv^ed for God. Enclaves of Free Evaluation— ADifferent Standard for Petty Crimes? It has been suggested by Langbein that, in fact, two systems of proof existed side by side fromthe MiddleAges until the abolition of the statutory theory of proof: that of the statutory theory for serious crimes and a systemof free evalnation of evidence for petty crimes {delicta levia).^^ The conclusion is based on the clear doctrinal opinion that torture was not allowed in cases of petty The prohibition against torturing those accused of petty crimes was written in statutes as well, for instance in the German Constitutio Criminalis Carolina of 1532and the Swedish Law of 1734. In the latter case, however, judicial torture was prohibited in general. As for the French criminal procedure, only severe crimes would be remitted to extraordinary, inquisitorial procedure which ultimately relied on torture.'^' Although no doubt prevails as to the prohibition of judicial torture in cases of delicta levia, I would, however, hesitate to draw from this the conclusion that a “system” of free evaluation existed alongside that of statutory proof. First, medieval and early modern jurists did not consciously apply a systemof legal proof alongside which another, contrasting systemcould have been tolerated. The premodern doctrine knew only one lawof proof, applicable basically to all categories of crimes, although against some crimes more forceful methods of fact-finding were allowed. The evidential systemwas essentially hierarchical: different standards of proof corresponded to different grades of crime^- 89 crime. Langbein 1976 pp. 48—19. For definitions of delicta levia, see Fiorclli 1954 II pp. 243-248. The Digest defined them as private crimes (D. 48, 2, 6); for Bartolus, they were other than malicious crimes. Some authors classified crimes according to the gravity of the result or that of the sanction. Ibid. p. 244. Langbein refers to Fiorelli 1954 II pp. 243-248 and Joost Damhouder’s “Pratique judiciaire es causes criminelles” (1564). Carolina was a “Halsgerichtsordnitrig” meaning that its scope of application was limited to crimes punishable by blood sanctions only. Kleinheyer 1984 p. 9. Mer 1985 p. 25. Lew 1939 pp. 31, 123; for Sweden speficallv, see below Chapter 5. In medieval theorv, the full proof of the type “plenissima” was required in cases of serious crime only. The “normal” full proof {“plena") sufficed for other cases whereas summary cases could be decided on a half proof as well. Lévy 1939 p. 31.
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