ABSTRACT
All the cases cited above reflect the principle that the lower courts were supposed to sentence strictly according to the law and the Court of Appeal was supposed to supervise this. In principle neither had the permission to deviate from the law. However, very soon after the formation of the Courts of Appeal in Sweden, they started to mitigate the law, first in the absence of the King but then on a more and more permanently accepted basis until the development turned into the opposite direction first because of the opposition of the nobility and then by the rise of the sovereignty, until the Courts of Appeal formally lost all rights to arbitration by 1684. It may be needless to say for anyone who has studied early modern governmental competitions for power that this did not stop any of the Swedish Courts of Appeal from arbitrating anyway. In many cases, like those concerning witchcraft or fornication, the lower courts simply followed suit throughout the century. This practice was made partially legal by the penal code of Queen Christina in 1657. This development, however, seems to have continued during the rest of the century and advanced again beyond the limits of the law (on the Court of Appeal’s right to mitigate see So¨rlin, 1999, 63ff; Thunander, 1993. On the lower courts following in the case of witchcraft and superstition see e.g. Nenonen, 1992, 273; So¨rlin, 1999, 65-67. Various practices regarding fornication are cited by T. Miettinen 2012, 132-139). That process seems to have been slower in the case of violence and especially domestic violence: lower courts had not yet adopted mitigation, but the Court of Appeal seems to have done so on a fairly regular basis.
