84 arbitrate or to use the poenae extraordinariaeEssentially, “arbitration” meant that the original death sentence prescribed by the lawwas revoked; then another, “arbitrary,” sentence was substituted for it. “Arbitration” grew to massive proportions: in some regions, the major portion of death sentences pronounced by hundred and town courts were commuted to fines, corporal punishment, or banishment. One of the reasons behind the emergence of leuteration in the 1600s was the incorporation of the Mosaic law through the so-called Appendix of 1608 into the Swedish legal order. Throughthe Appendix, many crimes, previously punished by fines, came to carry a death penalty. “Arbitration” was not allowed in lower courts,although there is evidence that the local courts did make convictions - to an ordinary sentence - with less than full proof in the 1600s. Thus, the right to leuteration, and with it, poena extraordinaria, was part of the struggle between lower and high courts on one hand and high courts and the Crown on the other. We may speak of a “judicial revolution.” Having emerged in judicial practice, the right to “arbitration” was given in 1643 to the high courts as a privilege. The Crown’s continued attempts to restrict its use by outrightly prohibiting it*'*^ were moderated in the decrees of 1753, 1756, and 1803; in these decrees, however, nothing was mentioned of poena extraordinaria'^^^ which could indicate that the institution had fallen into oblivion after the sanctioning of the Law of 1734It is clear, anyway, that the use of extraordinary sentences by lower courts had been frowned upon by the central power since the establishment of Absolutism and it was, then, probably completely rooted out during the first half of the 1700s. Up to the 1690s, the courts customarily condemned, not only to extraordinary sentences, but also to ordinary sentences in cases where only circumstantial evidence was at hand. Referring to a case of 1652, Munktell draws the conelusion that “clear circumstances” {“klara circumstantier”) or “clear reasons” {“klara skäl”) were considered equal to full proof. In 1690 the king, however, referring to Olaus Petri’s Instructions, forbade the courts to convict those accused of serious crimes based on one witness and circumstantial evidence only. After 1690, convictions with less than full proof appeared less frequently in ju- '36 Munktell 1940 p. 135. >37 Thunander 1993 pp. 196-199. Munktell 1940 p. 135. >39 Jägerskiöld 1964 p. 296. According to Jägerskiöld, the high courts regularly changed the lower court convictions to acquittals in these cases. >■>“ In 1684, king Charles XI, forbidding the courts to arbitrate, ordered them to “in civil and criminal cases strictly adhere to the law and our ordinances” (“uti civil- och kriminalärenden stricte rätta sig efeter lagen och V'are förordningar”). Thunander 1993 pp. 198-201. '“'i See Inger 1976 (b) pp. 37-50. >‘37 The last example that Calonius mentions of which the “six hundred” cases is of 1757, which could be taken to imply the same. Calonius 1829-1836, p. 276. See, however, note 124 above. 138
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