81 naria by the Swedish judicial practice diminished the differences caused by the differing levels of legal learning between the Swedish and continental law of proof. At least the thesis of the peripheral nature of Swedish law has to be reformulated. Whereas in the core area of ius commune — such as Germany and France - the statutory theory of proof was adopted more completely and in a more sophisticated manner - to some extent by legislation, but especially by legal scholarship - in Sweden the rigid rules of the legal theory of proof came to be supplemented essentially by way of judicial practice. The cases in which a leeway from the basically inflexible requirement of confession or two eyewitnesses was needed were those in which full proof was unavailable, but yet the accused’s guilt seemed certain or at least highly probable. As mentioned above, in the continental ius commune, several remedies had been developed. The court might seek to press confession by using judicial torture. If torture did not lead to the desired result, the court could convict the accused topoena extraordmaria with lesser proof. In addition to that, different modes of absolutio ab instantia were in use. In the Swedish judicial practice of the sixteenth and seventeenth centuries, all these remedies, in different versions, are found. Extraordinary punishments appeared early in the Swedish legal practice. Fromthe year 1541, Munktell cites a case in which a woman charged with infanticide was sentenced to a fine because stronger evidence was lacking. Especially when the death sentence was possible or when the accused was of bad reputation, the courts were reluctant to complete a half-proof with an oath; in these cases, poena extraordinaria was often the solution. Instead of an “ordinary” sentence, an “extraordinary” or “arbitrary” punishment was often given in cases of manslaughter, infanticide, theft, sodomy, gross forgery, and witchcraft.In these cases, the death sentence prescribed by lawwas routinely converted to a banishment in the 1600s. In the following century, more and more prison sentences and corporal punishments started to be given as extraordinary sentences, and banishment continued in use.’-^ In S'weden, poena extraordinaria was always purely a matter of judicial practice. The treatises do not mention it, and the institution left almost no signs in the legislation. Yet, the LawCommission of 1643 unsuccessfully attempted to legalizepoena extraordinaria To fully grasp the evidentiary systemof the War Articles and to placepoena extraordinaria in context, it is necessary to explain the rules of proof contained in the Articles somewhat in detail. Despite their limited scope of application, the Articles quite accurately depict the law of proof as it had developed by the Munktell 1939 p. 135. Munktell cites v'arious cases fromthe years 1627—1713. Ibid. p. 136. Wahlberg 1877-1878 p. 142.
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