RB 54

50 In the French law, the institutions of plus amplernent informé and raise hors de cour were taken into use as ways of dealing with cases where full proof was lacking. Despite differences as to the details when compared to the systems in use in the German territories, the functional similitudes of the French and German variants of the intermediary decision types seem clear enough: all of themwere ways of dealing with incomplete proof; the choice of decision type, then, depended on the amount of evidence presented. Regarding the actual rules of proof, they were not incorporated into the Ordinance of 1670; instead, for the most part they were left to be a matter of legal science and practice.^^ Relying on the exposition of the famous French criminalist Muyart de Vouglans, Esmein describes the main points of the statutory theory of proof that interest us here as follows: full proof {preuves completes) was indispensable insofar as capital crimes were concerned, but lesser crimes for which only a fine could result could be decided on lesser proof.-^ Full proof was, first of all, made up of two concurring eye-witnesses. Flearsay witnesses {témoins par oui-dire), witnesses who had heard “the threats of the accused and the cries of a dyingperson” {testes ex audituproprio) and those who had heard the accused outside court {testes ex parte accusati), were exeluded. Furthermore, the witness had to give identical statements in all three hearings during a procedure. The multiple possibilities of challenging witnesses, moreover, often made it impossible to find “perfect witnesses.”3° According to most treatise writers, written evidence could, although it rarely did, constitute full proof in criminal matters.^' Furthermore, full proof could be There were actually two types ofplus amplement informé: ä temps and indéfini. The former was meant for cases where which were not too severe, or where the circumstancial evidence was too feeble to warrant conviction. In the first case the period of imprisonment was temporally limited, normally six months or a year. In the case of plus amplement informé indéfini, the confinement continued for an unlimited time. Although plus amplement informé had originated as a formof a provisional measure while the investigation of a crime was pending, already in the sixteenth century, it had virtually become another form of punishment. The variant “a temps"’ was used always when the only accusing party was the King’s or the local seigneur’s procureur; provided that the case could he left hors de cour in case there were a civil party. Theplus amplement informéindéfini was resers ed for more serious crimes of which considerable circumstancial evidence was at hand. The plus amplement informé left the accused permanently in a “incerti et dubii status.” As Muyart de Vouglans put it: “it is not a punishment for the crime, but for the presumptions and the violent indicia that have not been washed off” {“n’ont point étépurgés”). Esmein 1882 pp. 281-283; Langbein 1976 pp. 50-55; and Ruff 1984 p. 58. According to Esmein, after that the theory of legal proofs had been developed mainly b)- the Italian jurists in the fifteenth and sixteenth centuries, it remained more or less unchanged until the Revolution of 1789. Esmein 1882 pp. 261-262. Schnapper 1974 p. 96; Esmein 1882 pp. 266-267, citing Muyart de Vouglans: “Dans le accusations qui ne sont pas capitales, it est evident qu’il ne faut pas des preuves aussi fortes ... mais lorsqu’il n’y a que de forts indices, leur force ne peut determiner qu’a des peines pecuniaires, si le judge se porte au renvoi quousque e’est-a-direplus amplement informé.” Esmein 1882 pp. 269-270. 3' pp. 270-271.

RkJQdWJsaXNoZXIy MjYyNDk=