chapter 4 The Procedure in the Livonian Courts of the Swedish Era 4.1 The Classification of Cases into Civil and Criminal In modern law, criminal law involves crimes and punishments, whereas civil law does not. Procedurally, a public prosecutor initiates criminal cases, where- as private parties pursue civil cases. Medieval and early modern law carried slightly different distinctions. In legal literature, delicts were divided into civil and criminal types. Benedict Carpzov, the leading German scholar, enumerated several features separating civil law delicts from actual crimes. Civil delicts carried “civil” punishments (bürgerliche Strafe), such as fines, whereas crimes carried “painful” punish- ments (peinliche Strafe), such as maiming or death. As for civil delicts, the defendant could not normally be taken into pre-trial custody (incarceratus), except when not able to place a warranty (“incarceratus sub cautione fidejusso- ria est”). Torture could only be used in criminal cases. Contrary to civil delicts, criminal cases could never be decided on circumstantial evidence or violent presumption alone.1 Civil delicts were dealt with through the help of adver- sarial (also called accusatorial) procedure, whereas criminal delicts called for inquisitorial procedure. Livonian statutory law did not quite follow the teachings of gemeines Recht, which Carpzov typically represents. Criminal cases in the Middle Ages were still not clearly distinguished from civil cases. The Mittlerer Livländischer Rit- terrecht, Chapter 77 stated: “Es darf der Richter nicht über das, was nicht vor Gericht ausgeklaget wird, Recht sprechen,” and “wo kein Kläger ist, da ist kein Richter.” Thus, without a plaintiff, there was no case. During the Swedish pe- riod, criminal procedure had evolved to become status-based. According to the vlgo of 1632 (art. xxv), the accusatorial procedure was the main rule in all criminal cases against noblemen. The only exception were the “hochpönli- che Laster,” crimes punishable by capital or corporal punishments, and which were to be processed inquisitorially. The term was obviously a translation of the Swedish högmål, which constituted the most serious category of crimes 1 Benedict Carpzov, Practica nova iii, q. 102, n. 19–32. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004331532_005 This is an open access chapter distributed under the terms of the CC BY-NC-ND 4.0 license.Heikki Pihlajamäki - 9789004331532 Downloaded from Brill.com09/27/2021 02:01:43AM via free access <UN> 152 chapter 4 in Sweden in the Middle Ages. According to the vlgo, whenever there was no private prosecutor but a crime had nevertheless taken place, a district prosecu- tor (Kreisfiskal) stepped in to perform the duty of the official prosecutor (actor officiosus). Although according to the noble privileges noblemen were only to be tried in the lower court but were not sentenced there, a prosecutor was thus necessary. The high court prosecutor (Oberfiskal), on the contrary, was not normally involved in prosecuting noblemen. A major exception to this were the majesty crimes (crimina laesae majestatis), which were directly tried in the high court as the first instance.2 The living law was, however, not the same as the law in the books. I will first discuss the lower court procedure in four parts: civil procedure, accusatorial procedure, accusatorial procedure with a prosecutor, and inquisitorial proce- dure. After that the high court procedure and the so-called revision procedure from the high court decisions to the king will be discussed. To avoid repetition, some features, which are common for all procedural types, will be treated un- der civil procedure. To give an idea of the relative frequency of the different modes of proce- dure, some statistics are necessary. In the winter and summer seasons of 1640 the Pernau District Court handled 32 cases, of which 12 were civil cases and the rest (20) were accusatorial criminal cases. The civil cases were about the own- ership of serfs and land, in addition to which one isolated debt case appeared. Thus, all criminal cases were accusatorial. These included three homicides, one of which led to a death punishment. There was also one infanticide case, in which the Court asked the High Court of Dorpat for permission to torture the suspect, and the permission was granted. Almost 50 years later, in 1688, the Pernau District Court heard 94 cases. Fifteen of them were civil cases and 26 accusatorial cases; thus, the numbers were practically the same as in 1640. However, two other groups had appeared, which had not existed at all in 1640. There were 28 prosecutor-driven accusa- torial cases and 25 inquisitorial cases. The grip of the state on criminal proce- dures had considerably tightened. In addition to the four classes of cases explained above, the town court re- cords include a considerable number of entries which are, more than anything, administrative by nature (Stadtsachen, as they are marked in the protocols). For instance, in 1619 the alderman of the Greater Guild, Daniel Reder, brought 2 hgo 1630, Art. 20; lgo 1632, Art. 6; J. C Schwarz, “Zur Geschichte des livländischen Crimi- nalprocesses während der Periode der schwedischen Herrschaft,” Zeitschrift für Rechtswis- senschaft herausgegeben von der juristischen Facultät der Universität Dorpat, zweiter Jahrgang (1870), 29–80, 99–133, 64–65. Heikki Pihlajamäki - 9789004331532 Downloaded from Brill.com09/27/2021 02:01:43AM via free access <UN> The Procedure In The Livonian Courts Of The Swedish Era 153 a list of petitions to the Council that the Guild wished the Council to consider. The Guild thought that it would be wise to start burning chalice at the Land- güter that the town owned, so that the chalice could be used to repair town houses. The Guild was also worried about the custom of those dwelling outside the town limits (Vorstedter) who were “bringing beer from the countryside and selling it in the suburb.” This caused damage to the city. The Council promised to consider both problems.3 I will not, however, discuss these “administrative” cases further in this study. 4.2 The Civil Procedure in the Lower Courts 4.2.1 What was a Civil Case? Not only were the categories of criminal cases construed differently to the way they are classed in modern law, but the early modern society also pro- duced civil cases, which seem exotic to the modern mind. The legal problems concerning peasants are the case in point. Runaway peasants caused a con- siderable amount of litigation in Livonia. In February 1641, when the District Court of Pernau sat at Fellin Manor, Wilibald von Bergen – the manorial lord – brought the peasant Mönnicke Michel to court to tell his story, because the lord of Karkus, Krausen, was demanding him as his runaway serf. Michel at- tested that he was originally from Oesel. He had previously been at Karkus, but had been freed in order to become a foot soldier (Knecht). Nine years earlier, already a free man, he had moved to the estates of Fellin, something which was also testified to by a witness.4 An overwhelming majority of Livonian peasants were thus serfs, and were treated as property. At the same assizes at Fellin, Gotthard Platzbeck demand- ed that Michel Engelhart return three of his peasants. Engelhart, represented by his wife, claimed that the peasants had been exchanged for other peasants. She was willing to return the peasants if she could get her own peasants back. After the hearing, the Court concluded that the steward had exchanged the peasants without the consent of his lord, and two of them were ordered to be returned within four weeks. The third one, Surwa Matz Wilm, according to the Court, had only lived at Karkus as a son-in-law (hauss Schwager) and served as a 3 Dorpat Council 1619, nae 995.1.252, f. 31–31 a. 4 dcp 1641, nae 915.1.4, f. 18. See also dcp 1641, nae 915.1.4, f. 20 (Gotthard Platzbeck vs. Michel Engelhardt, a case of three peasants); dcp 1641, nae 915.1.4, f. 32 a (Michel Engelhart vs. Mag- nus Stricken, a case of a peasant named Hanss Jesit). Heikki Pihlajamäki - 9789004331532 Downloaded from Brill.com09/27/2021 02:01:43AM via free access <UN> 154 chapter 4 Knecht there. While he was actually a peasant (“Erbbauer”) at Fellin (the manor of Engelhart), he was not ordered to be returned.5 The feudal social structure sometimes produced interesting possibilities for plaintiffs to pursue their rights. At the Pernau Lower Court in 1641, Andres Scharffenbach came forth with a civil case against Aloff Anrep, whose peas- ant Lauke Peter had allegedly stolen Scharffenbach’s horse. Scharffenbach now wanted Anrep to pay compensation. After the theft had been proven, the Court ordered Anrep to compensate within six weeks. The peasant was to be taken into custody (“zur gefenglichen haft einschicken”), and “he was not to be let out of prison, before the plaintiff Andres Scharffenbach be fully satisfied including expenses.”6 The case was thus treated fully as a civil case, and the peasant was in fact treated as a guarantee for payment. How often were civil cases taken to court and decided in favour of one of the parties? How often were cases taken to court, but either not decided defini- tively (because of an extrajudicial agreement) or ended in an agreement con- firmed by court decision? And how often were civil cases decided completely out of court? Because of the incompleteness of the archives, it is not possible to give exact figures. It is, however, clear from the archival material that all variants occurred. In one of his letters, Judge Georg Stiernhielm, for instance, mentions that a court case of his against the Town of Dorpat had been brought to an end thanks to “good men’s intervention” (“godhe Mäns interposition”), meaning arbitrators.7 In this study we must leave these extrajudicial legal phe- nomena aside, however, and concentrate on the actual judicial processes.8 4.2.2 Starting the Process: The District Court Ordinance The vlgo of 1632, as mentioned above, was the major piece of legislation regu- lating the procedure at the lower courts.