31 and to the distinct stages of the criminal procedure.However, no consciously formulated theory of free evaluation of evidence existed in continental jurisprudence before the latter half of eighteenth century. This observation does not, however, take the edge off of Langbein’s argument: it is obvious that much was left to judicial discretion. Most importantly, the judge decided when the indicia sufficed for torture, and, since no full proof was demanded to condemn one for petty crimes, in fact the sufficiency of evidence was left largely to judicial discretion there as well. Furthermore, lesser crimes were not subject only to the broader discretion of the judge; they could, in fact, be decided on a lesser proof.'^^ This is not to say, however, that the judge could have decided to subject the accused to torture with clearly insufficient evidence, or to free someone against whom evidence sufficient for torture had been presented.In this important sense, certain limits to the judge’s discretion were set.^^ Conclusion The statutory theory of proof was essentially a reflection of two important developments of the late Middle Ages: on one hand, the centralization and growth of ecclesiastic and secular powers, a centralization that a professionalized and scientifically oriented judiciary helped to create; and on the other, the scholastic philosophy. The centralization of the administration of both the Catholic Church and secular states was, in the area of procedural law, reflected in the binding of the judiciary to pre-established rules of evidence as part of the Whereas full proof sufficed for a condemnatory sentence, “dubious” but “urgent and pertinent” evidence was enough to warrant tcirture, and “remote” evidence served only to capture the accused. The theory thus formed a svstem. Says Fiorelh: “The theory was no pure abstraction, but it was intentfed, regardless of its defects, to satisfy the demands of logic and of practical jurisprudence of the time.” Fiorelli 1954 II pp. 32-33. Swedish Law of proof gives one standard, that of full proof, to all crimes alike. In Germanv, much of the lesser crime was treated in the Reichspolizeiordtjungen of 1530, 1548 and 1577 regulating pett^’ economic offenses. For the most part, however, petty crime was regulated by territorial or local law and not imperial legislation. Furthermore, much of what today is considered criminal law was at the beginning of the earlv Modern Age considered part of civil law, Langbcin 1974 p. 68 (note 9). Langbein also refers to Carpzov, who says that “an accused who is accused of a lesser offense and against whom there is violent suspicion and hence half proof, may also, even if he denies his guilt, be punished according to the discretion of the judge ...” (translation by Langbein, Langbein 1976 p. 168, quoted fromHoltappels 1965 p. 48). Levy 1939 p. 31. F'iorelli 1954 II pp. 163-165. See also ibid. pp. 35-36. Langbein is, nevertheless, most certainly right when he claims that free evaluation crept into law of proof together withpoena extraordinaria. To that we shall return later.
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