83 “If it so happens that the accused ... cannot produce an oath, he is to he held guilty, although the crime be somewhat serious, but he must not therefore, as far as a crime punishable by death is concerned, be sentenced to a death sentence or an ordinary sentence, because clear and complete reasons and proof are needed thereto ... instead, in such cases the Court shall remit the case with all its circumstances and a statement of the Court to the Royal Majesty ... so that according to the merits of the case an arbitrary sentence may be pronounced. Thus, in other than “Hals- och Lifssaker” the failure to take an oath led automatically to sentencing. As for “blood crimes,” they were remitted to the king who — and he alone — could pronounce an arbitrary sentence, poena extraordinaria. If, however, there was so much evidence that no oath could, for the risk of perjury, be allowed in the first place, then the judge could take recourse to absolutio ah instantia {“Guds Dom”). It is emphasized, however, that ahsolutio ab instantia is the “final way out,” to be used only when no further evidence can be obtained. Even then, the case must be remitted to the king (art. 19, 20). But the Articles do not describe C)nly a status quo, a law of proof such as it stood in the 1680s. The War and Sea Articles, typically for the Swedish law of proof in the 1600s and 1700s and especially in the emerging absolutismof the 1680s, reflect the ongoing power struggle between the courts of different levels and the king. Although - or because - courts, both lower and appellate, are known to pronounce poenae extraordinariae, the statutes reserve the right thereto to the sovereign only, thus seeking to bind the actual courts to the punishments prescribed by law. This basic idea of a judicial hierarchy suits the hierarchical tendency of the seventeenth century and the absolutist spirit of the 1680s. According to Munktell, the use of poena extraordinaria somewhat diminished before the sanctioning of the Law of 1734, but continued in use.*-^'* Calonius mentions that there were 600 cases of poena extraordinaria in the Swedish legal practice of the first half of the eighteenth century. In the 1600s, poena extraordinaria, or giving a lesser sentence for less than full proof, had come to be considered part of the high courts’ general “arbitration” {leuteration) faculties. Hundred courts and town courts had no right to “Om så hände, .it then beskvlte i ett sådant mahl ey kunde .åstad-komma någon Eed, tå hålles han wäl wara saker, fast gärningen wore något grof, men så bör han ey strax therföre uti en eller annan Hals- eller Lifssak, fällas till hfs- eller ordentligit straff, emedan ther til behöfwes klare och fullkomlige skiäl och bewis, warandes bättre at befira then brottslige, än fälla then oskyldige, utan wid sådane tilfällen referera saken med alle sine omständigheter, samt Rättens betänekiande, til Kongl. May:t eller then som Ofwcr-Commando förcr, så at ther uti efter sakernas beskaffenhet kan statueras något arbitralt straff.” Munktell 1939 p. 136. Calonius 1829-1836 p. 276. The types of cases that Calonius mentions as examples include infanticide, arson, repeated homicide, sodomv, incest, rape, and robbery. Calonius’s Supreme Court statements indicate, furthermore, that extraordinary punishments were used until the end of eighteenth century. See Calonius 1829-1836 IV pp. 250-252, 430—132.
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