78 “If someone is accused with more than half a proof of a serious crime and he denies it, and if the Judge finds that there is a danger of perjury, then let him leave the case to the future, so that it may be clarified.” (PS I7:32)''5 “Should someone be bound to the case with clear evidence, and full proof, even though he cannot be made to confess, then his denial does not matter. A Judge or a Governor may not let anyone be tormented to confess; should such be done, let the responsible pay. As for serious crimes, the Judge may attempt with heavy imprisonment to revxal the truth when binding circumstances are at hand against the accused; however, let the Judge act carefully therebv.” (PS 17:37)"<> As far as serious crimes were concerned, the evidentiary system, based on the legal practice that had taken shape in the seventeenth century and on the law of 1734 had five ways to end a criminal process: a conviction, absolutio ab a conditional acquittal, and a (complete) acquittal. Absolutio ab instantia could appear by itself, or together with confessional imprisonment {svårarefängelse, “hardened imprisonment,” or insättandepåbekännelse, “imprisonment for confession”)*'®- this combination can be classified as the fifth alternative. Absolutio ab instantia and confessional imprisonment w^ere available as decisional alternatives in cases of serious criminality only, and, according to the Royal Letters of April 12, 1753, and November 11, 1765, the decision on the use of both absolutio ab instantia and confessional imprisonment was to be referred to the king.As an additional prerequisite for the use of instantia,^^'^ “Nu är i svårare brottmål mer än halft bevis emot then, som anklagas, och nekar äntå gierningen: finner Domaren thet fahra är ommened; lemne saken til framtiden, tå then kan uppenbar varda.” II6 “Varder någor i brottmål bunden til saken med klara skiäl, och fulla bevis, äntå at han ej kan förmås til bekännelse; ther gälle ej hans nekande. Ej må Domare, eller Befalningshafvande låta någon til bekännelse pinas och plågas: giör thet någor; plichte som saken är til. I grofva brottmål må Domaren försöka med svårare fängelse, at få sanningen i Huset, ther bindande liknelser och omständigheter finnas emot then, somanklagad är: förfare doch ther med varsamliga.” In the earlier literature, absolntio ab instantia was classified as a tvpe of interlocutory sentence (Nehrman 1759 pp. 230, 235) because the case, instead of being formally closed, could be taken up for reconsideration. I find it, however, more illuminating to treat it as one of the ways of ending the case, like Forsman did. That is because absolutio ab instantia was åe facto so considered, and probably did not often lead to a newtrial. See Forsman 1896 p. 382. In statutory law, confessional imprisonment was based on the three royal letters, besides the PS 17:32 of the Faw of 1734. According to the Royal Fetter of April 12, 1753, the cases that the court deemed appropriate to “leave to the future” were to be referred to the king. The Roval Fetter of November 11, 1756, orders that if a case was left to the future (or “set under God’s doom,” which meant the same thing) the accused could be held prisoner for a “shorter or longer time.” Finallv, the Fetter of March 22, 1803, ordered that when someone accused of a serious crime was “almost proven guilty” (“/' det närmaste förvunnen”), denied his guilt, and when his dangerous character {“ondska och veanart”) endangered public security, the accused could be held prisoner for a “shorter or longer” time in order to force a confession. Inger 1976 (b) pp. 35, 37, 49-50. Ibid. pp. 35, 37. 118
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