RB 54

70 Johan Stiernhöök, the first Swedish legal historian, attempted to present the historical development of Swedish native lawin his “De jure sveonumet gothorumvetusto.”^^ In the book, he touches the law of proof only in passing. He speaks of “indicia” “presumptions,” “torture,” and “half-proven crimes.” He refers to the contemporary practice of favoringwitnesses and “other evidence” over the old modes of evidence: these days a recourse is taken to witnesses and other evidence, and if the case can thus be proven clearly, oath-helpers or nämnd do not play any role ... ”70 Stiernhöök says that if there are no witnesses, the plaintiff must prove his case by circumstantial evidence. Acriminal case is not taken to court unless its basis is tenable, be it “general reputation” or “strong presumptions.” If the case is half-proven, the accused is in a “balanced position”; the scales will tip either way depending on the outcome of the oath. If no oath-helpers are found, it is a sign that “he has led such a life that no trust can be placed in him, and that, even if he is not guilty at the moment, all the same is punished for guilt in the past Clearly, both medieval, indigenous elements as well as the influence of Roman-canon lawwere present in Stiernhöök’s lawof proof. Typical representatives of their century,^- Rålamb and Kloot presented Roman law as a subsidiary legal source, attempting to present national law with the help of the categories of Roman law.73 Thus, already in Rålamb, we see an active process of reception at work - a tendency that was even more pronounced at Kloot. The manuscript of Rilamb’s main work “Observationes Juris Practicae” was first completed in 1652 but was not published until 1674 - the years between the book’s completion and its publication were decisive for the seventeenth-century legal development. At the time of the publishing of “Observationes,” the work hardly represented legal practice very well; more than anything, “Observationes” was an attempt to cast Swedish law in a Roman-canonic conceptual mold.^"* The bibliography included in the book shows this well: references to Carpzov, Bartolus, Wolff, Wesenbec, Grotius, Menochius, Hobbes, and Olaus Petri are abundant. Rilamb’s law of proof was strongly influenced by the statutory theory of The work was printed in 1672 and published in 1674. 70 “ ... hodie ante omnia ad testes & alias probationes recurritur, & si causa sic liqvido probari potest, nulla; sunt sacrament.ihumaut etiamNembdx partes ...” Stiernhöök 1962 p. 121. ... si quis compurgartores non invenerit, indicium est, vitam ita egisse, ut in nulla tides haberi possit, luatq; etiamsi pro tempore innocens, poenamtamen reatus prxteriti ...” Ibid. pp. 122-124. Jägerskiöld 1967 pp. 179-209. Paasto 1994 pp. 206-207. Almquist 1946 p. 161. 75 Rålamb 1679. 71 “

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