RB 54

102 Regarding documentary evidence, the accused’s own writing, in which he or she confessed the crime, counted as full proof if the criteria given for an acceptable confession were fullfilled. If the accused denied the accusation, some crimes that could be committed by a document, such as blasphemy and treason, could be proved fully with the same document. As far as other crimes were concerned, documents could only have the value of indicia.-'^ Evidence short of full proof {prohatio minus plena) was, according to Nehrman’s interpretation of the rules of the PS, categorized into three groups: semiplena major {mer än halft hevis, PS 17:32), semiplena {halft bevis, PS 17: 29), semiplena minor (suspicious witness, PS 17:25).-® The court can condemn or acquit. In a case of binding circumstances {bindande liknelser), the accused could not, however, be completely acquitted, lest “anger arouse and others be provoked to crimes.” Instead, the case had to be left pending {absolutio ab instantia), if more than half a proof is at hand. The case could then be taken up again later, should new evidence appear, and if the old and the new evidence together amounted to full proof, the accused had be convicted.-"^ Nehrman stressed the importance of full proof, especially in capital crimes, but made no exceptions to the principle regarding other crimes.No delicta levia existed for Nehrman. To diminish the sentence and regarding all crimes, leuteration could be used. However, attenuating circumstances needed to be present. If deemed necessary, a punishment harsher than that prescribed by law could also be used, or if no sanction was provided for by the law, the accused could be punished nevertheless. Cases of the latter type had to be referred to the king.Nehrman mentioned lack of full proof as one of the cases where penalty mitigation could be employed. Leuteration seems, therefore, not to have included the possibilitv of xxsin^poena extraordinaria', Nehrman does not even mention the term. Nehrman’s writings must be read in the context of the sparse Swedish literature of the time. Indeed, to speak of a legal scholarship in the sense we understand the word today, considering the connotations it arouses in the mind of the modern jurist, is misleading. The modern legal professional - at least one trained in the continental legal system— is accustomed to thinking of law in three different levels: scholarship, legal practice, and statutory law, with all levels more or less affecting and mirroring one another.^- Nehrman 1759 pp. 183. Nehrman 1751 p. 225. Nehrman 1759 p. 235. Ibid. p. 234. Ibid. pp. 248-249. On leuteration in seventeenth-century Sweden in general, see Mvhrberg 1977; on its philosophical background in natural law and Scholasticism, sec Lindberg 1984. Naturally, this is not to say that juristic writing “only” slavishly mirrors or “describes” enacted positive law, as legal literature has customarily presented its task; on this, see Ogorek 1986 pp. 368-370; Giaro 1994 (b) p. 274.

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