RB 54

85 dicial practice for cases of serious crime.However, these cases did not completely disappear. Hence, the use of poena extraordinaria seems to have diminished fromthe 1680s until the sanctioning of the Lawof 1734, which fails completely to mention it, thus outlawing the institution. Indeed, absolutio ab instantia appears to have been more commonly employed thanpoena extraordinaria in the century preceding the Lawof 1734.*•*5 In cases of rather serious crimes where there was a half proof or more than a half proof and the accused denied his or her guilt yet the court was reluctant either to let the accused take a purgatory oath because of the danger of perjury or to free himor her, a practice of “leaving the case to the future” {absolutio ab instantia, Guds dom) emerged in the sixteenth-century Swedish court pracThe reception of absolutio ab instantia occurs, therefore, hand in hand with the spread of the legal theory of proof within Swedish judicial practice. As was the case with arbitrary punishments, absolutio ab instantia developed as part of judicial practice, and likepoena extraordinaria, was limited to the use of upper courts only. In the first phase, the legal device was employed by lower courts and high courts alike well into the second half of the seventeeth century,but in 1680 the right toabsolutio ab instantia was reserved for high courts only. The Royal Letter of December 12, 1707, ordered the high courts, furthermore, to refer such cases to the king.*"^^ Absolutio ab instantia came to be regulated by statutory law; however, not only in the War and Sea Articles of 1696, but also in the Swedish Lawof 1734.150 Confessional imprisonment, which played an important role in the nineteenth-century criminal procedure, has its roots in absolututio ab instantia. In the 1500s and 1600s and still during the first half of the eighteenth century, the 146 tice. Munktcll 1940 p. 134. Jägcrskiöld cites cases of 1696, 1697 and 1708; in all these cases, the accused was sentenced to an ordinary punishment in spite of a lack of legal full proof by the High Court of Svea. Jägerskiöld 1964 p. 296. Munktell 1940 p. 136. See also Calonius 1829-1836 p. 307. The Royal letter of December 22, 1686, expressly ordered the High Court of Dorpat to use, according to the “usual custom of the Kingdom” (“allmänne bruk uti Wart Rike”), “God’s doom” instead of torture in cases where full proof was lacking, but yet strong circumstantial evidence was at hand. Schmedeman 1706 pp.1087-1088. 146 Ingcr has traced the origin of absolutio ab instantia to Liber Extra of Gregory IX (1234). Inger 1976 (b) pp. 14, 24-25. Inger cites cases of absolutio ab instantia fromthe latter half of the 1500s and the beginning of the 1600s, ibid. p. 25. The earliest cases discovered by Munktell are from the vear 1625; Munktell 1940 p. 136. Inger 1976 (b) p. 28. Munktell 1940 p. 139. Jägerskiöld 1964 p. 296. War Articles of 1683 art. 20; Sea Articles of 1685 art. 20, Schmedeman 1706 pp. 836, 962; The Lawof 1734, PS 17:32. 147 148 LSO

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