47 difficult to take any exact stand without getting bogged down in a marsh of local varieties of legislation and jurisprudence. Certain common patterns and directions of development are, nevertheless, clear to be seen, and they should help us to place the Swedish seventeenth-century reception of statutory rules of proof in its proper framework. Studies on the theme show that, starting from the sixteenth century, the medieval lawof proof underwent significant changes as the legal rules of proof were no longer strictly followed. The principal concept of the changed law of proof was poena extraordinaria, extraordinary sentence. In European legal writing and practice, poena extraordinaria seems at first to have been linked to other than evidentiary questions. In the late Middle Ages, the seigniorial courts to a certain extent departed from the punishments fixed by statutes in their struggle against the King’s power aspirations. As the reception of Roman law began to gain ground fromthe middle of the thirteenth century onwards, royal judges also began to employ thes “arbitrary” sentences as an alternative to the fixed sentences prescribed by law. Schnapper calls the period between 1300-1650 “the apogee” of judges’ discretionary power. The growth of the royal judge’s discretionary powers was intimately linked to the corresponding learned law doctrine developed by the glossators and commentators. According to the communis opinio of the fourteenth century, the judge could depart from the sentence fixed by the law in certain cases of mitigating or aggravating circumstances, such as the accused’s young age or interest of the state.^ However, not before the sixteenth century could an extraordinary sentence, according to the reigning doctrinal opinion, be inflicted in cases of attempted or unintentional crime. The “doctors” were willing to give the courts the right to punish any deed alien to positive law but contrary to natural law; on the other hand, the medieval jurists wished to bind the judges to the strict rules of proof.'* According to the medieval legal literature, persistent denial under torture led to acquittal - or, as in France, “banni ou mis hors de cours.” It was not until the sixteenth century that treatise writers started to accept condemnation to apoena extraordinaria when full proof was lacking.*- Schnapper 1973 pp. 240-246, 251, 260-262. Ibid. pp. 269-271. '' Schnapper 1974 p. 110. By the end of the Middle Ages, no solid communis opinio had devcloped as to whether it lay within the judge’s arbitrary powers to pronounce a death sentence without a written law. Schnapper 1973 pp. 271-273. Ibid. pp. 274—276, 1974 pp. 87-88. In the sixteenth and seventeenth centuries several influential and large volumes were written by authors such as Tiraquellus, Menochius, Mascardus, and Carpzov, making the judge’s arbitrary power a general principle. There were different strands of opinion: some (Menochius) thought that m case of “violent presumptions” an ordinary punishment could be given while others thought that an ordinarv punishment could onlv be given if full proof was extracted under torture (Alciatus, Cujacius). Schnapper 1974 p. 82, 87-88.
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