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HEIKKI PIHLAJAMAKI Evidence, Crime, and the Legal Profession The Emergence of Free Evaluation of Evidence in the Finnish NineteenthCentury Criminal Procedure LUND1997

ISBN91-85190-55-1 ISSN 0534-2716 ©Heikki Pihlajamäki och Institutet för rättshistorisk forskning Tryck: Bloms i Lund Tryckeri AB, Lund 1997 Den på tredje sidan avbildade medaljen över Johan Stiernhöök är slagen av Svenska Akademien 1837. Den är graverad av C. M. Mellgren.

Acknowledgements For many, writing a dissertation is solitary work. Fortunately, this has not been my case, for all these years I have been lucky enough to work as a member of the small but dynamic community of legal historians at the University of Helsinki. In addition to being colleagues, these people have become my close friends. The significance of this factor cannot be overestimated. The theme of this study was first suggested to me by Professor Heikki Ylikangas. In the last fewyears, I have greatly benefited frommy discussions with this radiant teacher and admirable researcher who, every time I have asked for help, has had the patience to listen to my sometimes far-fetched ideas and to criticize them. Professors John Langbein and Kevät Nousiainen were kind enough to accept the task of acting as public examiners of the dissertation version of this book. John Langbein provided me with invaluable criticism and some lessons in legal history that I will never forget. Without doubt, his brief visit to Finland was a success. For many years, I have had the chance to benefit from Kevät Nousiainen’s great insight into matters of law and legal history. I thank her for all her wise words and recipes. I amparticularly pleased to acknowledge my gratitude to Docent Pia LettoVanamo. I owe to her a great deal of what I have learned of Western legal history during this process. Our innumerable discussions on the past, present and future of legal history have been invaluable to me. Docent Anu Pylkkänen, another close working partner of mine throughout these years, deserves to be thanked for her unfailing support. With her daily encouragement, I have been able to continue even though I was sometimes almost ready to quit. By struggling through an early manuscript of this study, both Pia Letto-Vanamo and Anu Pylkkänen significantly contributed to my finishing it. The efficient and knowledgeable work of Professor Jukka Kekkonen and Kevät Nousiainen as the pre-examiners of this work made it progress rapidly. Additionally, I thank Jukka Kekkonen for sharing my interest in the Hispanic world. I take the opportunity to express my gratitude to all the friends in Buenos Aires who made our 1992-1993 stay in that mythical city so unforgettable. I would especially like to mention Victor Tau Anzoategui, Gaston and Lourdes Doucet, Abelardo Levaggi, José Eduardo Corbetta, Nilda Giannetti, and Nélida Liparoti. I learned a lot from all of them. The institutional conditions for this fruitful period of my work were provided for by the University of Belgrano and the Instituto de Investigaciones de Historia del Derecho. Thank you. Virginia Nikkilä efficiently conducted the task of revising the English of my

VIII original manuscript. Needless to say, the remaining awkward expressions are my sole responsibility. Furthermore, I wish to thank Lea Purhonen and Anitta Vuorela for their technical help with the final manuscript. The largest part of this work was completed while I was a researcher of the Academy of Finland. I have also received financial support fromthe Finnish Cultural Foundation, the Väinö Tanner Foundation and the Honkasalo Foundation. The OlinFoundation for Legal History inSweden has kindly agreed to publish the work in its Rättshistoriskt bibliotek series. The greatest thanks of all goes to Kirsi Keravuori. Perhaps I would have ended up writing a dissertation even if I had not known her, but it would certainly have turned out to be very different. I dedicate this book to our little daughters Elina and Maaria. Helsinki, 24 September 1996 H.P.

Contents Acknowledgements Contents VII IX Introduction 1 PART ONE: The Statutory Theory of Proof and the Makingof the Centralized State .... 1. The Statutory Theory of Proof: The Construction of an Edifice 2. The Development of French Criminal Procedure and the Lawof Proof in the Late MiddleAges and the Renaissance 3. The Appearance of the Inquisitorial Procedure, Torture and the Legal Theory of Proof in Germany 4. The Statutory Theory Loses Its Grip - the System of Legal Proof Dismantling PART TWO: The Reception of the Statutory Theory of Proof inSweden 5. The Seventeenth-Century Reception of the Statutory Theory of Proof in Sweden 6. The Lawof Proof in the Swedish Legislation andJuristic Writingfrom the Lawof 1734 to the Beginning of the Nineteenth Century PART THREE: Free Evaluation of Evidence in the Nineteenth-Century Legal Literature: France, Germany, Sweden, Finland 7. France after 1789: Ulntime Conviction and theJury 8. Germany: Jury, Publicity, Orality, and the Proof 9. Sweden: ANordic Version of the Continental Liberal Procedure 10. Conclusion of Comparison: France, Germany and Sweden 11. The Emergence of Procedural Legal Literature in Finland at the End of the 1800s: ALate Reception of Free Evaluation of Evidence PART FOUR: Fromthe Legal Theory of Proof to the Free Evaluation of Evidence: the Ghange in Legal Practice 12. The Reign of Legal Proof in the Finnish Criminal Procedure Prior to the 1850s 13. The Years of Transformation: Towards Free Evaluation of Evidence 195 12 14 33 38 45 57 57 97 105 109 116 133 140 142 161 165

X PART FIVE: The Context of the Change: Legal Professionals and Modern Law 14. Crime, Criminal Law, and the Law of Proof in the NineteenthCentury Finland 15. The Finnish Legal Profession in the Nineteenth Century 16. Modern Lawand the Lawof Proof 205 206 223 237 Conclusions Appendix: Cases short of full proof 1820-1900 Sources 253 261 267

Introduction “The court shall, after carefully considering all presented circumstances, decide what shall be held as truth in a case.”' With this paragraph from the year 1948, the reign of the statutory theory of proof that had lasted about 300 years finally became legal history in Finland. In seventeenth-century Sweden, of which Finland was a part until 1809, the influence of continental ins commune had led to a reception of the Roman-canon rules of proof. According to these rules, a confession or two eyewitnesses were needed as evidence for conviction in a criminal case. The legal rules of proof were then taken as the basis of the statutory law of proof in the Swedish Lawof 1734. But just as it would be misleading to declare that statute the beginning of the statutory theory of proof in Sweden (and Finland), it would be equally misleading to attribute the end of the theory to the statute of 1948, for legal historians have always been aware of the fact that the statute of 1948 only marked the change of a legal practice in Finland that had occurred considerably earlier. It is the principal aim of the present study to find out when that transformation took place and why. Warning legal historians of the mistakes caused by an excessively narrow nationalist-oriented research tradition, and calling for broad comparisons, Harold Berman maintains that “Nationalist legal historiography is incapable of providing an understanding of the basic changes that have taken place in the Western legal systems in the past.” Therefore, legal historians must move on the largest possible scale and proceed “in the widest possible context.”2 This study builds on no systematic large-scale comparisons,^ nor does it aim at a general theory-building regarding the historical development of the law of evidence. Nevertheless, during the course of the research work the fact has clearly emerged that no meaningful study on the development of legal spheres so limited as Sweden or Finland makes sense without placing the research object in a larger context. Well into the nineteenth century, and even thereafter,"^ law was an international science, the “results” of which fluctuated freely from ‘ Procedural Code, 17 Chapter, 2 section, 1 article. - Berman 1993 pp. 31-33. Charles Tilly classifies comparative methods into individualizing, universalizing, variationfinding, ancf encompassing comparisons; see Tilly 1984 pp. 80-84. In this classification, mv method of comparison would most conveniently be classified as individualizing as it seeks to find out what distinctive properties Finnish law of proof had in comparison with the French, German, and Swedish developments, and to explain those features. On the other hand, in order to arrive at the singular characteristics, one has to establish the common, “universal” ones. On the European imcommune, see the already elassical works of Koschaker (1953), Wieacker (1967), and Coing (1985). RecentK' a new discussion on the possibilitv of building a new common

2 country to country; as a practical and legislative activity, moreover, the reasons for the adoption of particular legal solutions tend to have similar, or at least comparable, needs and endeavors as their background. Therefore, I have found it necessary to include relatively large comparative parts in the work. The selection of France, Germany, and Sweden as objects of comparison may require an explanation. Because of a long, common history,^ I find the comparison between Finland and nineteenth-century Sweden inescapable. At the beginning of the last century, Finland and Sweden thus shared the roots of a common legal tradition. Thereafter, the paths of the two countries diverged in several ways which make the comparison interesting. Germany, in turn, was the cradle of Swedish and later Finnish legal science fromthe sixteenth century onwards. It was - and to a large extent still is - fromthere that Swedish and Finnish jurists drew their inspiration and statutory models. France, then, was one of the first important experimental fields for the medieval statutory theory of proof; it was in France that the European state first centralized to the degree that the creation of a hierarchical court system, to which the statutory theory of proof is intimately linked, became possible. Moreover, it was in France, after the Great Revolution, that free evaluation of evidence first substituted for the rules of legal proof. Strictly speaking, the point of departure for legal change under inspection in this study is the legal theory of proof such as it had developed in Finland in the first half of the nineteenth century. The student of great, fundamental transformations of the law of proof deals, however, with a legal history of longue durée^\ so fewand far between are the changes, so deeply connected to underlying social, political and ideological currents are they. The historical perspective of the present study is, therefore, necessarily a long one. I will start, although cursorily, in the twelfth century, when the statutory theory of proof first emerged. The purpose of this part of the study is to find out what social, political and ideological preconditions have been linked to the emergence of a theory of evidence that consists of binding rules. This will hopefully help to clarify why the legal theory of proof assumed the particular shape it did in seventeenth-century Sweden, and what factors helped support the theory until its decline in the nineteenth century. Without a rather thorough historical and international comparison, an attempt to comprehend the way the legal theory of proof was constituted and how it functioned in Finland at the beginning nineteenth century would run into insurmountable difficulties. If it is necessary to employ comparative material to find out on what prereqEuropean lawon the foundation of the shared heritage has been raised by Zimmermann (1991 and 1992). Critique has been voiced by Giaro (1993, 1994 a and 1995), Caroni (1994), and LettoVanamo - Tamm(1994). 5 Finland belonged to Sw-eden as its eastern province for more than 600 years, from the twelfth century until 1809. ^ On the history oi longue durée, see Braudel 1980 pp. 25-54.

3 uisites the statutory theory of proof stood, it is equally indispensable to do so when attempting to understand why free evaluation of evidence replaced it. The Finnish development existed in no vacuumin this respect either; it is only by way of comparative work that the similarities to the international development, as well as national characteristics, if there are any, can be singled out. Apractical reason that forces one to employ comparative material is the fact that so little has been written about the development of the Swedish and Finnish law of proof. Compared to the enormous amount of volumes devoted to the history of criminal law and criminality, legal historians have - even on the international scale - had relatively little to say on criminal procedure and espedaily on the law of proof. Standard works on the development of the law of evidence include “La Preuve” (Parts I-IV, published by the Jean Bodin Society, Brussels, 1963-1965) and Jean-Philippe Lévy’s “La hierarchie des preuves dans le droit savant du moyen-age” (Lyon, 1939); Piero Fiorelli’s “La tortura giudiziaria nel diritto commune I-II” (Milan, 1953-1954) touches the law of evidence closely as well. Of the more recent ones, John Langbein’s comparative works on criminal procedure and judicial torture (“Prosecuting Crime in the Renaissance. England, Germany, France,” Cambridge, 1974, and “Torture and the Law of Proof,” Chicago, 1976), and the articles by several authors in “Beiträge zumZeugenbeweis in Europa und den USA (18.-20. Jahrhundert)” (Frankfurt am Main, 1994) deserve mention. Insofar as Sweden is concerned, Göran Inger has published a two-volume work on the development of confession (“Das Geständnis in der schwedischen Prozessrechtsgeschichte 1. Bis zur Griindung des Svea Hofgerichts 1614,” Stockholm, 1976; and “Erkännandet i det svenska processrättshistoria II,” Stockholm, 1994).^ As for Finland, no comprehensive study on the history of the lawof proof exists, although Kevät Nousiainen’s “Prosessin herruus” (Helsinki, 1993) deals extensively with legal procedure in general. Not one of the treatises mentioned above, however, has taken the emergence of free evaluation of evidence in the nineteenth century as its focal point; even the articles of the “Beiträge” that are devoted to criminal evidence deal only with witness evidence. In fact, no general presentation of the nineteenth-century lawof proof exists. Perhaps there is not enough worthwriting about? If Langbein is correct, the decisive changes had in fact taken place gradually beginning two hundred years before the bourgeois revolutions.^ In France, legal rules of proof - or what was left of them- were abandoned as a direct result of the adoption of the jury system after the Revolution; the jury, not the law of proof, was the crux of the debates.^ ^ See also Inger’s article on the reception of statutory of proof in seventeenth-century Sweden (Inger 1984). ** Langbein 1976 pp. 45-60. On the jury discussion in the years following the revolution, Lombard 1993 pp. 149-156.

4 And yet, important facets of the nineteenth-century evidential transformation remain untold. In the German states, the law of proof was intensively discussed before the statutory adoption of free evaluation of evidence after the convulsions of 1848. With the emergence of the bureaucratic state, legal professionals acquired a significant positionwithin the German Beamtenstaat, and with the subsequent superiority of written statutes the place of Juristenrecht vis-a-vis other sources of law was determined by the emerging theories of sources of law and interpretation. At the beginning of the nineteenth century, jurists as a profession became conscious of themselves; as an integral part of modern law, the genre of legal journals developed to communicate and to refleet the profession’s concerns. As I hope to show, all this had an important bearing on the lawof proof. During the course of the nineteenth century, free evaluation of evidence was, little by little, granted not only to trial juries but also to professional judges. Paradoxically, as courts at least in theory were now more bound to statutory law on one hand, on the other hand they were formally liberated from the rules of proof that had strained themever since the emergence of centralized legal systems in the late Middle Ages. Seen fromthis point of view, the nineteenth-century changes in the law of evidence prove extremely influential and interesting. Free evaluation of evidence emerged, then, as part and parcel of the modern law. To get a bit ahead of my discussion, the requirement of legal proof, although in practice modified in many ways, could not provide a framework flexible enough to meet the needs of the modern society aiming at increased effectiveness. Free evaluation of proof, as it was based on the subjective conviction of a court, allowed the judiciary to decide things materially as correctly as possible and contributed, thus, to a more accurate allocation of control measures. Free evaluation of evidence was, therefore, effective and rendered the judicial apparatus more capable of solving legal and social problems at both the local and the general level. If free evaluation of evidence, together with the principles of publicity and orality, is typical of legal modernity, then howdoes the history of Anglo-American lawrelate to this? Compared to continental Europe, the development in England and the United States has been almost the opposite: whereas the medieval English jury systemwas based on a kind of free evaluation of evidence, from the late eighteenth century up to the present, a body of complex rules of evidence has risen in the Anglo-American legal world. Furthermore, the importance of the jury has declined and the Anglo-American trial has become an increasingly lawyer-dominated one. See Langbein 1987 pp. 32-34 and Twining 1990 pp. 186-188. Fromthe point of viewof this study, however, it should be noted that the development of the law of proof has various dimensions that should be viewed as a totality. Opposite tendencies may, therefore, when viewed in the context of other important elements influencing the law of proof, for instance material criminal law and political power structure, turn out to be less different than what they seem at first sight. Apparent similarities, such as the rule orientation of the continental legal theory of proof and that of the modern Anglo-American law of evidence, may then, upon a

5 When substantive criminal law is taken into consideration, the inadequacy of the legal theory of proof becomes clear. The legal theory of proof only allowed for external factors demonstrable by eyewitness testimony to be taken into account as decisive elements of crime. “Internal” factors, such as intentionality, necessarily remained out of reach of the instruments that the legal theory of proof had at its disposal. Therefore, the theory could not help ending up in serious trouble when, starting within the Enlightenment philosophy and later classical criminal law, a call for the proportionality of punishments according to the degree of criminal intent was raised. According to Beccaria, Kant and Feuerbach, punishments were to be meted out according to the amount of wrongfulness present in the criminal deed. Necessarily, the determination of this wrongfulness required that factors not plain for the eye to see were to be unravelled. In classical criminal law, therefore, the Tatbestand of crime was divided into objective and subjective components. The legal theory of proof was completely unable to cope with subjective components of the crime. If punishments were to be meted out on latitudinal scales to correspond precisely to the harmfulness of the deed and to the amount of the evil-doer’s malevolence, as classical criminalists demanded, then the rough categories of the legal theory of proof did not serve adequately. Instead, to be able to accurately determine the subjective Tatbestand of crime and to meticulously differentiate between the criminal intentions of the wrongdoer, a more flexible and adaptable systemwas needed. Free evaluation of evidence served these needs well. Punishment to crime, evidential decision to fact: both matches, in a parallel manner, reflect the desire of the rising hourgeois state to bestow the individual with the right to his or her own decisions and a corresponding moral responsibility for those decisions. It is not by coincidence that free evaluation of evidence, in the French literature, is often called théorie morale des preuves. The abolition of legal rules of proof and the corresponding emergence of free evaluation of evidence is, then, intimately linked to epithets describing nineteenth-century society such as “modern law,” “liberal bourgeois Rechtsstaat” and “legal positivism.”" It would, therefore, be naive to exclude questions of power from this study. Just as the adoption of legal rules of proof starting fromthe twelfth century cannot be detached from the growth of both closer inspection turn out different. For the magnitude of the task, I have chosen not to include Anglo-American lawin the comparative parts of this work. *■ Modernity in connection to law can be understood in different ways. See, for example Berman 1983 pp. 1-10 and 1993 pp. 35-45, who dates the essential features of modern (or “Western”) law to the twelfth century renaissance of Roman law. In this study, I understand modern law the Weberian way, i.e., as referring to a legal systemrelatively independent of other social and normative systems, a system that functions on the principles of rationality and formality. This kind of modern law dates essentially to the nineteenth century. See Weber 1956 pp. 497-513; Tuori 1990 pp. 7-15; and Nousiainen 1993 pp. 26-31.

6 the secular and papal central powers, neither can the final abolition of those rules in the nineteenth century be adequately handled without paying some attention to the hourgeoisment of the nineteenth-century society and the subsequent gradual levelling of the Ständestaat, and its replacement by other divisions. David Garland has described “penality” as a “social institution which, in its routine practices, somehow contrives to condense a whole web of social relations and cultural meanings,” such as ideologies of criminal law, society’s need for a labor force and the development of public sensitivities. All of these, and many others, are reflected in the institution of punishment, and none of them alone adequately explains the variations in the forms it assumes. “Penality runs like a connecting thread through all the layers of social structure, connecting the general with the particular and the centre with its boundaries. I believe that much the same can be said about the law of proof. The very forms the lawof proof assumes and the stages it passes through are not affected only by political factors or social changes, although these cannot be omitted from consideration. Epistemological changes, development of substantive law and the history of the legal profession all inflict their direct and indirect influence on the law of proof. It goes without saying that no one study can deal with all aspects of such a complex phenomenon; the concerns expressed above and developed further in this study are the threads that I have chosen especially worthy of picking out of the rich texture of history through which the student of legal proof must find his way. It is certainly not the whole story, nor is it intended to be. What this work tells is the story of the transformation that the Finnish nineteenth-century law of proof went through. As mentioned already, it is, however, a story that necessarily begins much before that century. Therefore, a brief account of the legal theory of proof and the system of ordeals that preceded it will be given in Chapter 1. Although this study focuses primarily on Finnish lawof proof, the international context of our law will be present all through the study. Strictly speaking, and especially before the nineteenth century, no Finnish or Swedish lawof proof existed; it is always in connection with the continental European law of proof that all legal solutions adopted here need to be viewed. This is not to say, however, that no national characteristics would be observed during the course of the study, the most evident of them being the lack of learned jurists, the late emergence of scientific law, and the corresponding lay domination of procedure. To provide sufficient continental European background for the observations concerning Finland, the development of French and German law of proof is treated in Chapters 2-4. After that, in Chapters 5 and 6, the reception 12 Garland 1990 pp. 284, 287.

7 of legal proof in Sweden will be dealt with. Hopefully, these chapters will help the reader to forman understanding of the different sc)cial, political and philosophical prerequisites that helped keep the theory of legal rules more or less intact until the nineteenth century. In Chapters 7-11, the doctrinal (and partly statutory) breakthrough of free evaluation of evidence in Germany, France, Sweden and Finland is observed. The comparison will, I hope, furnish the reader with an idea of the different contexts under which the legal theory of proof was finally abolished. As will be shown, free evaluation of evidence stands in close relationship to the widening of lay participation in criminal procedure through the institution of the jury. There were, however, other aspects involved, most notably the rt:>le of substantive criminal law and the legal profession in the bureaucratic state. Chapters 12 and 13 focus on the transformation of Finnish law of proof. Given the scarcity of Finnish legal discussion in the nineteenth century, the change has been impossible to follow without case material. Although it is common knowledge among Finnish historians of law that the legal rules of proof were abandoned by the legal practice already before the statutory change in 1948, there have been c^nly vague conceptions as to when the change occurred. By way of empirical study, I will show that the change was a gradual one, but that the crucial years were the decades of the 1850s and 1860s. In addition to the timing of the change, I will attempt to clarify what juridicaltechnical patterns it followed. The bulk of the case material consists of the cases of theJudicial Department of the Senate (fromnow on: the JDS), Finland’s highest court instance during the Autonomy (1809-1917). Timewise, the study begins in 1820 and covers for every fifth year all the homicide cases that reached theJDS. There are two reasons for the starting point. First, it is important to understand the Finnish legal theory of proof at the time before it began to change. An even later year would have filled this criterion, but I wanted to begin at some year before the factual abolition of capital punishment in Finland in 1826. To begin before Finland’s annexation to Russia in 1809 would have been, then, not only excessive from the point of viewof the desire to establish the Finnish legal theory of proof before its disappearance, but would also have changed the whole context of the empirical part to an unnecessary extent. Because by 1900 all the essential elements of free evaluation of evidence had already fallen into place, I have chosen the turn of the twentieth century as the logical place to end the empirical survey. The studv concentrates on homicidal crimes. Again, there are several reasons for the solution. First and foremost, it is well-recognized fact that legal rules of proof emerged in connection to serious criminality.'-^ Second, as court I-'iorelli 1953 I pp. 243-246; L.ingbcin 1976 pp. 48-49.

8 records concerning homicides are, on an average, considerably more elaborated and the decisions better grounded than the ones dealing with other crimes, they tend to offer much more to the researcher. It is much easier to delve into the world of nineteenth-century evidential thinking through them than by using other material. In order to verify on the correctness of my conelusions drawn on the basis of homicidal material, and to see whether they have any general applicability, I have investigated lower court criminal cases (other than homicides) from the years 1830 and 1850. Why criminal cases? In Finland, the same courts decided both criminal and civil cases, so why not deal with both? At an early phase of the study, it became clear that the problems of criminal procedure differ to such a great extent from the ones concerning civil procedure that both branches of law could not be fitted into the same study. By the 1800s, the methods of proof employed in civil law had grown very different fromcriminal procedure. Whereas witness testimony and confession, the characteristics of the legal theory of proof, were undoubtedly central in criminal law, in civil law they had largely yielded to documental proof. Since the latter was, according to the Lawof 1734,'"^ evaluated freely, it would present tremendous methodological difficulties to draw definite conclusions as to the conceptions of the lawof proof and their change on the basis of civil law cases. For these reasons, I have preferred to limit the study to criminal procedure. In the final three Chapters of the book, the focus will be placed on Finland again. The aimof this part of the book is to attempt to find explanations for the way law of proof changed in Finland. I will discuss the links between crime and criminal law on one hand, and the law of proof on the other (Chapter 14); then I will take up the role of the emerging Finnish legal profession as an engine of change (Chapter 15). In Chapter 16, the change under investigation will be examined within the context of modern law. On the statutory level, free evaluation of evidence was first introduced at the turn of the twentieth century for certain kinds of civil cases,'-'’ and in the aftermath of the violent Civil War of 1918 the principle was included in the statute governing the legal treatment of the defeated Reds.'^ With the reform of the Chapter 17 of the PS in 1948, the principle of free evaluation of evidence was ’■* Procedural Section (fromnow on; PS) 17:1; “Företer nagor skrifteliga bevis, at sin talan ther med styreka; pröfve Domaren noga theras beskaffenhet och riktighet, så ock hvad vitsord och verkan the i saken äga”, or in English: “Should someone present written evidence to prove his case thereby, let the Judge carefully weigh their quality and correctness, and also what weight and effect they shall have in the case.” Statutes entailing the principle of free evaluation of evidence were the Railroad Compensation Act of February 19, 1898 {Laki rautatienkäytöstä aiheutuvien vahinkojen korvaamiscsta) and Custody Act (Holhouslaki) of August 19, 1898. See Kekkonen 1991 pp. 48-49.

9 then extended to cover all civil and criminal cases.These statutory reforms, however, only followed the changes that had occurred at the level of legal practice decades earlier.'^ Before entering the actual theme of the study, a fewwords on the situation of nineteenth-century Finland, and the country’s administrative and judicial apparatus of the time are in order.After its separation from Sweden, Finland was annexed to the Russian Empire as an autonomous Grand Duchy. The Russian Emperor governed Finland as Grand Duke. The autonomy meant that “the country”-^ was governed by its own administrative organs - the most important of which were the Senate the Diet, and the Governor General as representative of the Emperor. As the Diet was not convened by the Emperor at all during the “stateless night” of 1809-1863, the factual power resided largely with the Senate and the senators. The Senate acted in the name of the czar, and prepared, among other things, draft decrees and law proposals for himto decide.-- The essence of Finland’s autonomy rested on the strong Senate: Finland’s autonomy w'as, in fact, the bureaucracy’s and Senate’s autonomy.-^ It was only after 1863 that the Diet developed to rival the Senate’s position as Finland’s power center. During all of the nineteenth century, the administrative language remained Swedish; the language of the majority, Finnish, had no official position until the 1880s.-‘* Promoting Finland “to a nation among nations” in the annexation, emperor Alexander I agreed to uphold Finland’s constitutions and the rest of the legal The struggle for a total reform since the late nineteenth century, including the legislative travauxpréparatoircs, is given an exhaustive treatment in Nousiainen 1993 pp. 534-569. In its statement on the government proposal no. 39/1933, the Supreme Court expressly dedares that “our legal practice has for a long time relied on free evaluation of evidence.” Hallitukscn csitys N:o 39/1933. It is significant, however, that not even the travauxpréparatoircs of the earlier statutes contain any genuine discussion on the principles of evidence evaluation. See the following proposals to the Estates and to the Parliament: csitys N:o 14/1897 (Railroad Compensation Act), csitys N:o 19/1897 (Custody Act), and hallitukscn csitys N:o 45/1917. The best general introductions to the theme are K. W. Rauhala’s “Suomcn Keskushallinnon järjestämisestä vuosina 1808-1817 I-H” (Helsinki, 1910) and “Keisarillincn Suomen Senaatti 1809-1909 I-II” (Helsinki, 1915, 1921), and Markku Tyynila’s “Senaatti, tutkimus hallituskonsclji-senaatista” (Helsinki, 1992). When referring to Finland of those times, the terms “country” of “state” arc ambivalent, since a national icfcntity was only starting to be formed in the second half of the nineteenth centurv. Under Sweden, Finland was always considered a province. The “invention” of the Finnish state in the 1860s is the central argument of Jussila (1987). So at least until the convocation of the Diet in 1863, after which the Senate began acting as an “upper chamber” between the Diet and the Emperor. Tc'vnila 1992 p. 380-381. -- Tvvnila 1991 pp. 138-139. Ylikangas 1986 pp. 105-106. From 1884 onwards parties could ask for court records in Swedish or in Finnish, and in 1886 other government organs were allowed to use Finnish in their official internal communication.

10 systemin Finland.--^ There was, then, no abrupt break in development. The inherited Swedish constitutions established that the law bills concerning Finland had to be initiated in the Finnish Diet. However, because the Diet did not convene, the legal development until 1863 occurred largely through court practice; thereafter, the ideological influence for legal reforms originated in Germany and Sweden (not Russia-^). It was in the second half of the century that Finland’s legal development joined that of the rest of Europe.-^^ Like the laws, the Finnish court systemwas also inherited fromthe Swedish era. There were two kinds of local courts, hundred courts {kihlakunnanoikeus, häradsrätt) for the countryside and city courts {raastuvanoikeus, rådstuvurätt) for the townships. High courts, of which there were three,-^ formed the appellate instance. The greatest principal difference from the past was that, in the court structure of the Autonomy, the Supreme Court of Sweden was replaced by the Judicial Department of the Senate.Its members were nominated for three-year periods and not for life. The head of the Finnish court hierarchy was, then, not even an actual court in the modern sense of the word. As we shall see later, this probablv had a bearing on the rather weak position of the JDS. For a reader not familiar with Finnish legal and constitutional history, it may seem surprising that although Finland belonged to the Russian Empire practically all through the nineteenth century, Russian history plays a rather modest role in this study. The autonomous Grand Duchy had its own legal system and administration. Nevertheless, the possibility of Russian influence on Finnish legislation and judicial decision-making cannot a priori be ruled out. Throughout the century, however, direct Russian influence on the Finnish It was, however, not clear what Alexander I meant by “constitutions.” The Swedish constitutions included the Formtsf Government of 1772 and the Union and Securitv Act of 1789 which had established Gustavus III as absolute ruler. In keeping with the contemporary natural law thinking, the Finns did not inform the ruler of any particular positive statutes, but rather of the principles bv which thev had been governed. Consequently, Alexander did not confirmthe validitv of any particular statutes, but instead referred to the laws of Finland in general. It was onlv towards 1820 that the more precise conception of the 1772 Formof Government and the 1789 Union and Security Act began to be presented by the Finns as the fundamental laws confirmed by the Czar. Jussila 1969 pp. 107—113; also Jvranki 1989 pp. 403-408. In Russia, the liberal wave commence in 1855 with ascendance to the throne of Alexander II. Thereafter, the Russian economy was gradually liberalized. Ylikangas 1986 p. 115. It is interesting that liberal procedural reforms, with the principle of free evaluation of evidence, were rapidly enacted as well; see Raiser 1972. See Kekkonen 1987 on the realization of liberal economic reforms in Finland in 1855-1879. The High Court of Turku had been founded in 1623, and that of Vaasa in 1776. The High Court of Vyborg was founded, on the initiative of the Emperor Nicholas II, in Vaasa in 1839. The Senate was divided into two departments, the judicial and the economic. The members of the judicial department usuallv had a background as judge, whereas members of the economic department were mostly administrative bureaucrats. Tyynilä 1991 p. 138.

11 legal system, at least insofar as criminal and procedural lawis concerned, was indeed relatively insignificant. Finland’s political situation as part of Russia did, however, influence constitutional interpretations and conceptions throughout the Autonomy.^’ The fact that the constitutional, “legalist” ideology came to have an impact on the particular mode which the theories of legal interpretation and legal sources assumed and, consequently, on the way the law of proof was presented in jurisprudence as compared to judicial practice will be discussed in Chapter 16. 30 Tyynilä has shown that Russians had interest in the Finnish criminal law reform that ended in the promulgation of the Code of 1889; as to the actual contents of the Code, their import was, however, nonexistant. Moreover, there were Russian-originated attempts at a codification of various branches of Finnish law, including the criminal, in the 1830s and 1840s; however, they never came to bear fruit. Tyynilä 1989. The Russian czar’s decision to commute all death sentences to Siberian banishments in 1826, as part of a general Russian policy, did have a remarkable effect on the Finnish penal system. That year, the last death sentences in peace time were carried out in Finland. Jussila 1969, especially pp. 191-196.

PART ONE: The Statutory Theory of Proof and the Making of the Centralized State In the final instance, all questions asked in this study concern one central problem: Why was the statutory theory of proof abandoned by the Finnish legal practice during the latter half of the nineteenth century? The main task leads to several questions that need to be asked and answered. If the statutory theory no longer served a purpose, then apparently the prerequisites that had upheld the theory were no longer there. But what were those pillars which managed to support the statutory theory of proof for hundreds of years, from the late Middle Ages well into the nineteenth century? In order to find out just why the theory collapsed, we need to understand why it emerged and was maintained in the first place. There is no single answer to the question of why the statutory theory endured as long as it did, for we cannot approach the theory en bloc. During the six centuries of its existence, the statutory theory of proof went through different periods and appeared in forms that differed fromone another both in time and space, and it is not useful or necessary to attempt to present a complete picture of all those varieties.' Regardless, a rather extensive comparative work is indispensable; I will, however, concentrate my observations on two interwoven points. The first has to do with the factors that helped maintain the statutory theory of proof, and the second deals more specifically with the historical phase in which the theory was adopted in Sweden. As far as the prerequisites of the theory are concerned, it will first be observed that the statutory theory of proof has always tended to emerge in connection with strengthening central power. In fact, the theoretical approach to legal proof as such emerged as one of the consequences of consolidating political power. It is clearly demonstrated by the way a system of judicial ordeals, oaths and oath-helpers was often replaced by the statutory theory of proof wherever a centralized government was erected. Moreover, it seems that only as national states acquired more cohesiveness with the emerging absolutismin the sixteenth and seventeenth centuries did it become possible and legitimate for the legal institution of poena extraordinaria to appear. It was then that the ' For those interested, Jean Bodin Society’s publication “La preuve, deuxieme partie, moyen age et temps mödernes” (Brussels, 1965) remains the best introduction to the different aspects and historical phases of the theory.

13 central governments had acquired enough strength for the judiciary representing it to legitimately pronounce sentences based only on circumstantial evidence, and it was then that the central power had developed a system professional enough to be controlled efficiently.- The statutory theory of proof was, then, one of the devices with the help of which central power seeks to bind and control a judiciary that it subjugated. A central power seeking to increase its rule can be regarded as one of the central pillars that upheld the legal theory of proof. Although a condicio sine qua non, it was not, however, the only one. For secondly, the legal theory of proof had epistemological prerequisites that cannot wholly be reduced to the political aspect and ought to observed separately. Originally, the legal theory of proof was an application of Aristotelian philosophy to the domain of legal proof. With the emergence of empirist philosophy in the seventeenth century, however, major modifications were made to the theory and its practical applications in the formof poena extraordinaria and the subsequent decline of the use of judicial torture. If empirist philosophy caused important changes in the theory, Kantian philosophy with its concentration on the active and morally responsible subject was to inflict, as far as epistemology is concerned, a fatal blowon the statutory theory of proof. These themes are followed using French and German legal history as comparative examples: France, because it is the first centralized state whose legal development can be followed to the nineteenth century; and Germany, because of the special significance that German legal development has exercised over the Swedish and Finnish development ever since the sixteenth century. The particular shape that the Swedish law of proof acquired in the seventeenth century would be impossible to grasp without awareness of the specific international context of the reception. It was not just any formof legal theory of proof that was adopted by Swedish judicial practice and legislation, but, instead, the theory was adopted in the very formthat it had acquired in the continental jurisprudence at the time of the Swedish reception. Although the uniting thread between continental and Swedish jurisprudence was cut after the promulgation of the Swedish Law of 1734, with which the legal theory of proof became statutory lawin Sweden, in this study eighteenth-century continental jurisprudence is not consistently dealt with, for no decisive changes took place in either the continental or Swedish law of proof until the late eighteenth and the nineteenth centuries.^ Therefore, the thread is only picked up again as the nineteenth-century development is treated. - The connection between the strengthening political power and the law of proof is developed this way in Langbein 1976 pp. 55-56. This is not to say that no changes took place in the European law of proof in most of the eighteenth century; in fact, law of proof is more or less constantly in a state of change. I only wish to claim that the building blocks of the Finnish version of the statutory theory such as it remained in the nineteenth centum- were laid in the seventeenth century and did not suffer essential changes in the eighteenth. by no means

14 1. The Statutory Theory of Proof: The Construction of an Edifice In the eleventh and early twelfth centuries, profound changes occurred in the history of Western legal order. Before these two centuries, legal institutions had grown inseparable fromthe other social institutions, such as religion and custom. Prior to the eleventh and the twelfth centuries, law remained unsystematized and no professional legal corps had yet developed. Law was deeply embedded in the other social institutions surrounding it, and it was passed on to new generations chiefly as part of oral tradition; therefore, it was conceived of as unchangeable and stable."^ Starting in the eleventh centurv, an immense population growth plus increasing internal and external trade within Europe as well as between European areas and other lands came to lead Western Europe through radical transformations.5 These larger societal changes serv’e as a background for the judicial revolution that took place in the Italian city-states of the eleventh and especially twelfth centurv.^ It was from the late eleventh century onwards that an Independent systemof canon law began to develop, a systemthat then served as a model for the subsequent bodies of secular law: the feudal, mercantile, urban, manorial and royal systems of law. Despite important differences between canon and Roman law, the students of both bodies of law shared essentially the same methodology, and there was a bond of mutual influence between the two branches of law.^ The story of the revival of Roman law and the legal profession that started in the universities of Italian city-states of the eleventh century and the spreading of Roman-canon lawto most parts of Europe during the following five centuries in the form of ius commune is a well known one.*^ Fromthe point of view of this study, one thread of the rich texture of the late medieval growth of ■* Berman 1983 pp. 49-50. Bloch 1962 pp. 69-71. ^ Even though generally considered decisive, the break with the past was not complete. On the predecessors of the eleventh century law schools and the attempts at systematization of Lombard law fromthe ninth centurv onwards, see Raddmg 1988. ^ Wieacker 1967 pp. 78-80; Berman 1983 pp. 273-275; Hattenhauer 1992 pp. 254-260. For a description of ins ntrnrnqne and its dissemination through the medieval universities; see Koschaker 1953 pp. 55-164, Berman 1983 pp. 120-164, or Friedrich Carl von Savigny’s classical Geschichte des romischen Recht im Mittelalter of 1834 (Savigny 1956, part III, pp. 152-419). Whitman (1990) gives a vivid account of ins commnne as a complex choice-of-law system, where Roman-canon law was only one, although hierarchically the highest, possible “common law” to be established between two litigants. Whitman 1990 pp. 8-9. Flowever, whereas Roman law remained always and everywhere a subsidiary source of law, canon law was the positive law of the Church. Furthermore, Roman law was considered basically immutable, although subject to reinterpretations; canon law, in turn, was a dynamic and developing system. Berman 1983 pp. 204-205.