the svea court of appeal in the early modern period 234 his concluding statement, Tinctorius even made use of the contemporary legal literature, namely, Andreas Gaill.630 Allusions to legal literature were not frequent, however. Besides the one to Gaill, few others appear. Georg Stiernhielm, a learned Swedish judge and also known as the “father of Swedish poetry,” acted as advocate for a Swede named Andreas Larsson, when he was charged with manslaughter at the Dorpat Castle Court in 1630-1631. In one of his written statements to the Court, Stiernhielm referred to Baldus.631 In a case of counterfeiting and robbery in 1635, Stiernhielm now acted as the Referent, the member in charge of preparing the decision. In his pro voto statement,632 following all the basic precepts of the Roman-Canon law of proof, Stiernhielm shows that he was well aware of the contemporary literature on criminal procedure. The main legal problem in the case had to do with evidence, which will serve as an example of Stiernhielm’s argumentation. For instance, Stiernhielm stresses that “criminal case proofs need to be brighter than day light,” and therefore the witnesses also have to be particularly credible (in Criminalibus causis, […] probationes luce meridiana debent esse clariores, Testes omni exceptione majores requiruntur). Since the witness in question had been condemned to death for another crime and because, in addition, his statement was not internally consistent, Stiernhielm did not give the statement any weight. The same conclusion applied to another witness who was underage, having therefore deposed under oath, and repeating exactly the same words as the witness mentioned above, with whom the under-aged witness had come to the hearing (deponiret gleich als aus einem munde mit demCarpofsin mit deme er gekommen[…]). Stiernhielm mentions Mascardus (de prob. Concl. 1371) and Julius Clarus (Criminalibus, § fin. q. 630 Based on Gaill, Tinctorius states that “non ex vulnere, sed ex accidenti portiq vulneratq mortuus praesumitur.” In the marginal note, there is a reference to Gaill’s Observationes (Liber 2, Obs. 111, no. 23). In this passage, Gaill does not speak of accidents, however, discussing the situation in which a wounded person begets fever or other illness and dies. Then, according to Gaill, it should be presumed that the death occurred because of the illness, not violence. Further on, Tinctorius refers to another passage of Observationes (2.110.11). See also Pastor Andreas Hornung vs. Lieutenant Johann Friedrich Gant v. Shieffelbein, EAA, 915/1/8, Pernauer Landgericht 1695 –1698, fol. 213. 631 “Melius sit mori, quam vili pendi,” EAA, 4036/1/1 Dorpater Schlossgericht 1630 –1631. 632 These statements contained an elaborated version of ratio decidendi, whereas much less was disclosed to the parties in the final decision of the Court of Appeal. Thepro votostatement was thus essentially meant as an internal document of the Court. This statement has been preserved in Stiernhielm’s private archive.
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