RS 9

321 Summary Studies in the Development of the Swedish Legal Process during the Seventeenth Century BY PROFESSOR GORAN INGER Central to my study of the development of legal procedure from the Middle Ages to the introduction of our contemporary Code of Procedure has stood, and stands, the institution of the confession, that is, the value that can be ascribed to a confession in civil cases and criminal cases respectively. In earlier published works concerning my research I have found that the confession as a means of proof came to take a central position duringthe Middle Ages both within the clerical and the secular continental legal procedures. There were several reasons for this. One was that the confession came to stand in the center for the clerical institutionof confession and penance. Another reason was the introduction of the so-called theory of regulating proof, which implied a gradation and arithmetical calculation of the value of the evidence provided by the various means which could come into question in a case. Among other things, one came to distinguish between full or complete proof, prohatio plena, and half proof, prohatiosemiplena. Lower downon the graduated scaleof values comes thus circumstantial evidence. One’s own confession before the court was calculated in this connection to be full proof. Complete proof was, furthermore, that which was obvious or notorious, official documents, and the testimony of twocorroborating witnesses. One witness was calculated to be partial evidence. In order to convict a person suspected of having committed a crime, full proof was required. That, in its turn, resulted in the tendency toextract a confession by means of some formof torture. The use of torture was even permitted by Pope Innocent IVin the year 1252. If onedid not succeed inextortinga confession one could postpone a case which meant that one did not reach a final decision in the case, but delayed the decision for some future time so that, if new evidence was discovered, the case could again be taken up and a decision reached. That course of action camt to be called ahsolutio ah instantia.

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