182 other alternatives at their disposal. In what follows, I have called these intermediate categories ofdecision. As for serious criminality, there were five different categories of decision; a different amount of proof corresponded to each. In accordance withinternational models, the basic idea behind these categories is that the proof presented was to match the type of decision made. Following the logic of the statutory theory of proof, if a considerable amount of evidence, although not full proof, against the accused was presented, a complete acquittal could not result. The categories of proof formed a continuumalong which the amount of proof corresponded to a category of decision. Amount of Evidence Less than a half proof Ahalf proof More than half proof More than half proof and other requirements Full proof Category ofDecision Acquittal (PS 17:33) Conditional Acquittal (PS 17:32) Absolutio Ab Instantia (PS 17:32) Confessional Imprisonment (PS 17:32, Royal Ordinance of January 20, 1779) Conviction (RB 17:29, 36, 37) In a way, my classification of categories of decision is anachronistic; it appears only partly in contemporary works of legal literature. It is clear, however, that for a nineteenth-century judge the categories presented themselves as alternatives, and the choice between themdepended on the amount of evidence at hand. Therefore, the typology is more than anything a reconstruction of the factual decision-making situation. Furthermore, the categories are all based on legislation.57 The categories of decision fullfilled different functions. Whereas conditional acquittal was clearly a way of rendering a certain amount of public disapproval on the accused, absolutio ab instantia and confessional imprisonment had a preeminently procedural function as well. The purpose of the latter was, of course, to extract a confession from the accused; in the case of the former, the case could be taken up again, should new evidence appear. My categorization may cause the objection that confessional imprisonment was, in fact, a special case of absolutio ab instantia. When the accused was sent to confessional imprisonment, he or she was, technically, first given an absolutio ab instantia. Often in legal literature, absolutio ab instantia was treated as a postponement^^ See also Gemmel 1911, pp. 21-22, who distinguishes four categories of decision in Sweden; however, in his time confessional imprisonment was already abolished by Swedish legal practise. For Ehrström, absolutio ab instantia was an interlocutory decision. Ehrström 1867 pp. 582586. See, however, Calonius 1813 p. 70 and Forsman 1896 (b) pp. 381, 391-392. According to Calonius and Forsman, since absolutio ab instantia only seldom lead to a new trial, it had to be considered a definitive decision.
RkJQdWJsaXNoZXIy MjYyNDk=