48 By the sixteenth and especially in the seventeenth centuries, poena extraordinaria had acquired new meanings.'^ It could nowbe used, not only in cases in which mitigating or aggravating factors were involved, or when no written sanction clause was provided, but also when full proof was lacking. Therewere two types of cases: (1) those in which there was a sufficient amount of circumstantial evidence to use torture, but the accused could not be made to confess and (2) cases in which there was enough circumstantial evidence to persuade the court, but torture could not be used because the evidence did not cumulate to half proof. In these cases, a poena extraordinaria could be imposed. However, it always had to be less severe than the punishment would have been had full proof existed. Indeed, it was said that the accused was not even convicted of a crime, but rather punished for the suspicion that was raised by the proof against him (thence the German term Verdachtstrafe).^'^ In the German territorial states, the poena extraordinaria {Verdachtstrafe, Liigenstrafe, Ungehorsamstrafe^^) spread rapidly, and against the wording of the Carolina,*^ in statutory law, legal practice, and juristic writing. Originating in the city republics of northern Italy in the fifteenth century,'^ galley service became one of the principal forms of poena extraordinaria that came to complement the so-conceived shortcomings of penal lawin the Mediterranean European states.*^ In Germany, corresponding forms of opera publica developed in the 1600s.’^ The premodern opinio doctorum of the late 1700s and early 1800s generally held a favorable attitude towards poena extraordinaria.-^ A punishment for “lying in court” - refusing to confess - was taken into the statThe development started in the Italian practice in the sixteenth century. Also during the sixteenth century, it was at least to some extent adopted by the French royal court. Benedict Carpzov and Johannes Böhmer then refined the doctrine in the seventeenth-century Germany. Schmidt 1965 pp. 166-169. For Carpzov’s theory, see Carpzov 1684 III pp. 271-278. Langbein 1976 pp. 47—18. Ungehorsamstrafe means “punishment for inobedicnce,” and Liigenstrafe is the German for “punishment for lying.” All three terms were used for punishments employed in roughly the same kind of situations. Langbein 1976 pp. 10, 167; Gilissen 1965 p. 788. Schmidt 1965 p. 178. Ibid. p. 186. Besides cases short of full proof, galley sciwice was used in three other situations as well: to avoid a death sentence; for attempted crimes; and when the deed was forbidden but written law provided no concrete punishment. Schlosser 1988 pp. 22-25. According to Schlosser, Tiraquellus’s “De poenis temperandis aut remittendis” bequeathed more influence on the contemporary European ins commune criminal law than any other work. Having studied the practice of the Conseil souverain de Roussillon — the superior provincial court in Roussillon - in 1659-1789, Bernard Lloansi has shown that extraordinary punishments were used in cases of monetary falsification when full proof could not be produced; at the same time, the use of judicial torture shows a declining tendency. Lloansi 1993. See also Bloch 1990 on French cases of monetary falsification in relation to the law of proof. Schmidt 1965 pp. 186-187. See Grolman 1825 pp. 567—568 and Tittman 1824 III pp. 502—504.
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