25 Thus, to pronounce a valid confession capable of producing full proof, the accused had to be of a certain age {maior) and the other party had to be present or represented in court {et hostis); the confession had to be given freely (sponte) and not extracted by violence. Therefore, as torture came to be frequently used to obtain confessions, it was demanded that the confession be repeated in court “voluntarily.” Extrajudicial confession, for most authors, had only the effect of indicium. The notoriety of a confession meant that no contrary evidence was possible, nor could an appeal be made.^^ jf confession was given under judicial torture, it had to be confirmed, “ratified,” in court in order to be valid.5^’ If the accused recanted his or her confession, torture could be repeated one or more times, depending on the statute and author.57 On the evidentiary scale of medieval legal scholars, the highest of proof proper - for notoriety was not a proof-, “probatioplena," was placed immediately after notoriety. According to Baldus, Bartolus and St. Thomas Aquinas, this category of proof was inferior to notoriety. Whereas, for Baldus, notoriety was comparable to a light observed directly by the senses, prohatioplena was like a light reflected by a mirror. Thus, it did not produce knowledge, “perfecta scientia,” but was, nevertheless, sufficient as full proof in all cases. In contrast to notoriety, counterevidence against prohatio plena was allowed, and appeal was possible.58 Typically, probatio plena consisted of statements by two witnesses; hence the well-known formula “testis unus, testis nullus."^'^ The statement had to be based on a fact experienced personally and directly by a corporal sense {“de visa,” not “de auditu”). Importantly, in the medieval juristic writing the judge was also to evaluate the witness’s reliability. Because of this, the statement had to be given in court, so that the judge could see for himself whether the witness hesitated or blushed. According to Lévy, the medieval authors “repeat incessantly that it is not the number but the quality of the witnesses” that gives Ibid. pp. 56-57. In Sweden, the Court Ordinance ot 1614 prohibited appeal in cases of the most serious criminality. The appeal was finally allowed in all criminal cases through the Law of 1734. Inger 1994 pp. 119-120. .S6 piorelli 1954 II pp. 117-124. ■“'7 Ibid. pp. 126-127. Levy 1939 pp. 67—68. A requirement of two witnesses can be found in Roman law and in various passages of the Bible. Ibid. 1939 p. 69. For an extensive treatment on the principle of “testis unus, testis nullus'’ in the ins commune up to the eighteenth centurv and with a special emphasis on Spain, see Fernandez Espinar (1979). The autheir provides an impressively long list of ms commune writers - mainly from the fifteenth, sixteenth, and seventeenth centuries - writing on the requirement of two witnesses. The list contains exact references to the pages where the authors treat the subject. Ibid. pp.33-38.
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