49 utes of several German states at the beginning of the nineteenth century; with the abolition of the legal theory of proof, all forms of poena extraordinaria were then abandoned in the 1840s and 1850s.-' Alongside poena extraordinaria, another important way to handle cases short of full proof spread in German jurisprudence and legal practice. Like poena extraordinaria, Instanzenthiridnng {ahsolutio ab observatione iudicii, absolutio rebus stantibus prout stant, absolutio ab instantia) was an Italian innovation, mentioned in the writings of Julius Clarus of the sixteenth century. In cases in which evidence did not suffice for a poena extraordinaria, yet did not permit acquittal, the case could be left pending until new binding evidence surfaced, leaving the defendant thus in the state of one accused.-- Absolutio ab instantia was embedded into the German law in the eighteenth century,2^ and it came to exercise a great influence on the Swedish and Finnish lawof proof.-'' The French Ordinance of 1670, a product of absolutismand Louis XIV, attempted to unify the heterogeneous French criminal procedure. The purpose of the statute was to render judicial procedure more efficient and rid it of abuses of local judges; in practice, however, this goal was poorly achieved.^5 The Ordinance of 1670 established a scale of decision types. It knew three different types of acquittals: the acquittal proper {décharge d’accusation), the mise hors cour and plus amplement informé. To which of these the court took recourse was essentially a matter of degree of evidence. The acquittal proper was the most complete of these and enabled the accused to press a civil damage suit against the accusing civil party. Hors de cour did not carry any of the negative side-effects that plus amplement informé did.-^ However, the importance of hors de cour lay in that it left a shadow of doubt hanging over the accused’s head; neither could he or she demand charges against the accusing civil party. The mise hors cour was allowed for state sovereign courts only. Finally, the plus amplement informéwas a “provisional acquittal” only, leaving the accused “incerti et dubii status”: the case could be taken up again any time, should new evidence appear. It was an intermediate position between the hors de cour and condemnation and could be used when the evidence did not add up to full proof, but was too strong to acquit or place the accused hors de cour. Liigenstrafe w.is incorporated into statutorv law in Prussia 1805, Baden 1803, Bavaria, Austria 1803 and Hanover 1840; Mauss 1974 p. 10. -- Schmidt 1965 p. 178; Inger 1976 (b) pp. 14-23. Ingcr 1976 (b) pp. 14-15, also for a comparison of absolutio ab instantia according to Quistorp and Kleinschrod. -•* In general, see ibid. The institution is dealt with in detail below; see Chapter 5. Esmein 1882 pp. 330-333, 341-342; Olivier-Martin 1948 p. 354. Carbasse 1990 p. 158. Carbasse 1990 pp. 146-155; Esmein 1882 pp. 244-245; Ruff 1984 pp. 58-59. Moreover, his or her reputation was perpetually damaged (infamy); for instance, the accused could not make a testament or hold a public office or benefice. Neither was the accused capable of testifying, and the case could be taken up anytime against him if new evidence arose. Langbcin 1976 pp. 53-55. 27
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