RB 54

51 constituted of manifest and necessary presumptions {présomptions manifestes et nécessaires)?- As far as confession was concerned, according to most authors it did not alone suffice for full proof in serious crimes, but had to be accompanied by at least one piece of “pressing” circumstantial evidence indicespressants or prochains") or one good witness. The importance of a half-proof {indicesprochains, semi-preuves^'^) lay - let it be repeated here - in that it could be conducive to judicial torture. Various half-proof could not, according to the majority of treatise writers, be combined into a full proof. They could, however, be conducive to a lesser sentence, poena extraordinaria?'^ By themselves, remote indicia {indices eloignés^^) could warrant a pecuniary punishment only. As to the categories of decision, the Ordinance of 1670 divides them into those that are made during the trial (interlocutory decisions, jugements interlocutoires) and the ones that are made at the end of the trial (definitive decis\ons, jugements définitifs). Among the interlocutory decisions was the one to take recourse to torture, of which there were two kinds: a question préalable, which was used to extract the names of the defendant’s accomplices after he had already been condemned and which could only be approved by the regional parlement, and question preparatoire, employed to force the accused to confess. For judicial torture to take place, “substantial evidence” {“preuve considerable”) had to exist of a crime that carried the death sentence.^® In the Middle Ages, judicial torture had “purged” the accused: if he or she stood torture without confessing, no punishment whatsoever could be indieted. From the end of the 1400s, another practice developed and was confirmed by the Ordinance of 1670. When ordering judicial torture, judges could “reserve the evidence,” which meant that the “substantial evidence” that had led to the use of torture could be used as a basis for a poena extraordinaria should torture not produce the desired result {question avec réserve des preuves). The court could, thus, avoid setting free a person whose culpability, even in spite of the lack of full proof and because of his or her resistance to torture, seemed certain.-*^ The courts’ wish not to take the risk of losing the possibility of condemning the accused to an extraordinary punishment is logical. Ibid. p. 272. Ibid. pp. 272-275. ’■* As examples Muyart de Vouglans mentions e.xrra-judicial confession and certain kinds of written evidence. Ibid. p. 278. Ibid. pp. 276-277. Muyart de Vouglans mentions inconsistencies in the statements of the accused, the trembling of his voice, his taciturnity and the closeness of his home to the site of the crime. Ibid. p. 279. ■'7 Ibid. pp. 279-281. Carbasse 1990 pp. 151-152; Ruff 1984 pp. 55, 61; Pinson-Ramin 1994 p. 550; Ulrich 1972 pp. 412-414. Carbassc 1990 p. 143-145, 153; Pinson-Ramin 1994 pp. 561-562. For the Spanish equivalent oi question avec reserve des preuves, see Tomas y Valiente 1973 pp. 136-137. 37 .vt

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