55 attempt to answer this one. A complete abolition of the legal theory of proofwould have meant a detachment of the judiciary, not only fromthe rules themselves, but from the supreme power itself. Through the rules of proof, the judiciary remained, at least in principle, under the ruler’s control. I think this makes it understandable why royal legislation, before the end of the eighteenth century, hardly ever mentions poena extraordinaria^^ and why this legal institute seems to belong so intimately to the domain of legal science and legal practice. To run somewhat ahead of the argument, it is only with the Enlightment and liberal ideologies of the late eighteenth and the nineteenth centuries that this pattern changes. According to a basic premise of the emerging jury system, courts can be argued to have received their evaluative powers directly from the people. Therefore, there is no need to control them with the legal rules of proof. Conclusion The European law of proof went through important changes in the fifteenth and sixteenth centuries. The statutory theory of proof that, starting in the thirteenth century, had come to replace the law of evidence based on oaths and ordeals had in its medieval doctrinal form constituted a rather inflexible system. According to the prevailing opinion in the medieval legal literature, a criminal conviction always needed full proof as its basis, although (subject to supposed safeguards) judicial torture could be used to extract a confession from the accused. In the early Modern Age, this rigid systemaltered in an important way, as more leeway was developed for the courts to deal with cases in which the necessary full proof was lacking. Poena extraordinaria, extraordinary punishment, was one of the central devices, allowing a court to depart fromthe requirement of full proof. Thus the accused could be convicted on lesser proof, although never sentenced to capital punishment. Indeed, the growth of the judiciary’s arbitrary powers through the institution of poena extraordinaria in Eurc^pe has been seen to have formed an important step toward free evaluation of evidence. Other ways of solving the problem of incomplete proof were developed as well. In Germany, absolutio ab instantia {Instanzentbindung) and in France plus amplement informé and mis hors cour came to be employed as important intermediate decision types between a complete acquittal and conviction. In fact, by the sixteenth century a whole scale of decision types had emerged in both Germany and France; on the scale, a different amount of proof corresponded to each decision type, and the requirement of full proof was reserved mainly for capital punishment. Although declining in use, judiThe Swedish Sea and War Articles of 1686 forman exeption, see Chapter 5.
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