168 the procedure was entirely written as compared to the partially oral procedure of the lower courts. Together with the written mode of procedure, the fact that the upper courts were physically situated, in an over-whelming majority of cases, far from the site of the crime made the high courts independent in relation to the local communities. The lack of laymen in these courts tended to render the court procedure less likely to respond to the local pressures. What were the local pressures? In the rural communities where an overwhelming majority of the homicides occurred, people were in most cases, whether legal proof existed or not, aware of the wrongdoer’s identity. Obviously, there was a strong need “to do something” to protect the community from serious crime, and this need was transmitted into the court by way of local lavmen, nämndemän. Linked to the need to do something about the crime at the local level, there was a technical legal reason which encouraged the lower courts to by-pass the rules of proof: no effective alternative to conviction was available for the lower courts. As has been noted above, confessional imprisonment acted as a functional equivalent, in serious criminal cases which were short of full proof but materially clear. This remedy to patch the shortcomings of the statutory theory of proof was not, however, at the lower courts’ disposal, as the sphere of the decision-making of the lower courts had traditionally been limited. On the contrary, high courts and theJDS could, by orderingabsolutio ab instantia together with confessional imprisonment ensure that the accused was not set free. Because absolutio ab instantia - employed without confessional imprisonment - necessarily involved setting the accused free, a local court had to make a conviction if it wished to keep the accused behind bars during the time when the case was pending in upper instances. Howcould a systemof differing court practices between instances function and be tolerated? Although attempts at creating a hierarchical court system had been made since the seventeeth centurv, the hierarchical system was not complete at the beginning of the nineteenth century. The JDS was comparatively weak, and therefore hardly capable of effectively steering the courts and the course of legal development in the country. In modern law, legal cases arc decided in conformity with the legal system; The local pressures could sometimes and in some regions pull in different directions. In his study on the knife-fighters in Southern Ostrobothnia in 1790-1825, Ylikangas has shown how witnesses were intimidated, and the courts, holding strictly to the requirement of two evewitnesses, consistently declined to make convections without full proof in homicide cases. Ylikangas 1976 (c) pp. 206-222. When compared to the material in this study. Southern Ostrobothnia makes an evident exception to the general pattern in which lower courts seem to have convicted the defendant whenever a material certainty of the doer was reached regardless of whether the legal requirement of full proof was met. Probably, the local power constellation, which the knife-fighters had in some localities managed to shake considerablv, forced certain Southern Ostrobothnian hundred courts to hold to the legal rules of proof in favor of the accused.
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