26 weight to their statements.A presumption, if it was a “violent” one, could also constituteprobatio plena.^^ What was the judge to do should contradictory evidence of equal rank appear? In the case of conflicting witnesses, statements were to be assessed according to the credibility of the witness. If no difference could be detected this way, the judge was to decide according to the viewof the majority of the witnesses.^- As will be shown later, Swedish lawof proof adopted a similar solution in the Lawof 1734. Since documentary evidence could not constitute full proof in criminal cases, no conflict between themand witness statements could arise: written proof was self-evidently considered inferior to witness proof. Only after the Middle Ages did this rule, “térnoinspassent lettres,” give wav to its opposite principle, ^''lettrespassent témoins.”^^ One of the best-known facets of the medieval law of proof is the treatment of imperfect proof: a half proof {probatio semiplena) and circumstancial evidence {indicia). Their classification and further divisions were an original product of medieval scholarship, withno model in Roman or Germanic laws.^"* A typical probatio semiplena was a statement of one witness {unus testis); this character of nnus testis was the logical outcome of the two-witness rule.^^ A probable presumption {probabilis or verisimilis), less convincing than a violent presumption worth a full proof, was also considered a half proof. Probable and violent presumptions were hard to differentiate between. A typical exampie of the latter - that a relatic')n between a man and a woman was to be suspected “si inveniatur solus cum sola colloquens in locis suspectis et freLévy 1939 pp. 71-72. See also Hoinmel’s alphabetical manual on the evidential value of different witness statements (Hommelio 1780). In ins commune, a multitude of exceptions was developed to the requirement of two witnesses. Most of themwere, however, rather rare from the point of viewof practical judicial life. For exampie, the witness statement of the Pope, an empertir, a king or a prince was considered probatio plena by itself by most authors. Furthermore, certain material limitations to the requirement were made in the legal literature; one witness sufficed, for example, when the evidential theme produced no harmto a third partv, when the case by nature was practically impossible to prove by two witnesses, or when the one witness was an important state official. Fernandez Espmar 1979 pp. 42—19, 81-84. Lew 1939 pp. 83-84. According to Tancredus: “potius ingenuo quam libertino, seniori quam iuniori, honorato quaminferiori, masculo quamfeminae,” ibid. p. 85. In civil cases, however, the principle “témoins passent lettres" was in force until the early Modern Age; then, because of the increased credibilitv of written documents, the rule gradually changed in favour of written evidence {“lettres passent témoins”). Probably, the increased literacy and organizational level of governmental administration contributed to the same result. Levy 1939 pp. 86-87, 104-105, 167; Villers 1965 pp. 350-353. Levy 1939 p. 196. Ibid. pp. 109-110. On the development of the rule in Spanish law, see Fern.indez Lspinar 1979.
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