52 for the number of confessions achieved was surprisingly low: Pinson-Ramin’s study on the seventeenth-century Parlement of Bretagne shows that a confession was obtained in only 8.33 % of the cases heard under question préparatoireIndeed, the use of torture was anything but widespread in seventeenth-century France. The division of evidence into three types - full proof {preuves completes), close circumstantial evidence (semi-proof, indices prochains) and remote indicia {indices éloignés)'^- - corresponds to the division of the Swedish Law of 1734 (see Chapters 5-6). Although the French doctrine hesitated on many points, there was unanimity on one thing: complete proof was an absolute prerequisite for capital punishment. The same ius commune principle can be found in the Swedish seventeenth- and eighteenth-century legal practice (see Chapter 5). Concerning serious crimes which were “occultae” and hard to prove, early modern procedural literature favored the judge’s discretionary powers.The theory of circumstantial evidence was, then, widely used in the witchcraft cases that spread across Europe in the sixteenth and seventeenth centuries. As an exception to other crimes, ordeals (particularly water and needle ordeals) were considered in legal practice as indicia leading to torture. Langbein has proposed that the “revolution in the lawof proof” - as he calls the development described above - occurred in close relation to the new modes of punishment, such as galley and prison sentences.'*-'’ According to Langbein, the true nature of poena extraordinaria in these cases did not reside •*° Esmein 1882 p. 283; Pinson-Ramin 1994 p. 559. See Cameron 1981 pp. 145-146 for Auvergne; for Bretagne, Mer 1985 p. 28 and PinsonRamin 1994. These studies show that torture was rarely inflicted in the eighteenth century. When it was, it was usually undertaken by the Parlements themselves and was seldomsuccessful in producing confession. Schapper 1991 pp. 72-80, shows that judicial torture was in much wider use in the sixteenth-century France. See also Soman’s studies which suggest that the use of torture had declined considerably already in the fifteenth and sixteenth centuries; Soman 1992 Ch. V’ll p. 47, Ch. XIIp. 195, Ch. XVp. 3. Esmein 1882 p. 269. However, as the national legal svstems began to grow more heterogeneous from the sixteenth centurv onwards, regional variation in the evidenciary doctrine and legislation developed as well. In Germanv, the Carolina expressly prohibited condemnations based on circumstantial evidence onlv; in the seventeenth centurv, how'ever, Carpzov pronounced himself in favor of those (see Carpzov 1684 III p. 149). On the contrary, in Italy and Spain such convictions seemed possible. Schnapper 1974 p. 88. For Spain, Tomas y Valiente 1973 pp. 136-137. On the Indizienlehre in German witchcraft cases, see Schormann 1981 pp. 42-52 and Oestmann 1995 pp. 37-38. The German practise made its way to Scandinavian practise as well: see Ankarloo 1984 pp. 63-76 and Sörlin 1993 pp. 50-57 (Sweden); and Naess 1982 pp. 190-202 (Norway). Langbein 1976 pp. 49-50. See also Stichweh 1994, according to whomthe poena extraordinaria functionally replaced judicial torture which was abolished in German states between 17401828.
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