the court of appeal as legal transfer – heikki pihlajamäki 241 to Per Sparre (President of the Court of Appeal in 1631 – 34), Stiernhielm requested that the Court of Appeal would “give some consideration to torture in this case” ([…] hafva något betänckiande omTorturen i denne Saken […]). According to Stiernhielm, the crime of witchcraft had become common, probably because this was an “occult crime, which could rarely produce half a proof, or even circumstantial evidence, never full proof.” Because of the lack of evidence, the criminals could rarely be subjected to torture. Peasants were therefore scared of even trying to get witches to court, thinking that “they could get themselves no justice” (sigh ingen rätt kunna få).658 Stiernhielm emerges here as an interesting link between the generally unlearned Swedish criminal procedure with no judicial torture on the one hand and the learned gemeines Recht procedure, if perhaps no longer dependent upon judicial torture then at least familiar with it. In European criminal procedure, judicial torture is normally associated with inquisitorial procedure. In Livonia, however, torture could also be used in cases initiated accusatorially – which was always the case in the early years of Swedish rule. This, again, is an example of how flexibly the procedural modes could be changed. Once it had been decided to employ judicial torture, the procedure followed the ius commune mode, which the case of Maye and “the old Saikat woman” of 1641 shows clearly. In July of 1640, the Pernau Lower Court heard Maye, suspected of infanticide, and the “the old Saikat woman” (no name given in the sources) for assisting the crime. Both denied the charge, and the Court decided to proceed to torture. The Saikat woman testified against Maye, so the required half a proof was to hand, although the amount of proof is not specifically elaborated upon in the Court’s decision. The Court only states that “since the record shows and [both of the accused] have participated in the infanticide, but have not been willing to confess”, they will be tortured, starting with the old lady.”659 However, suspects could not be tortured without the among the most learned, if not the most learned, of contemporary Swedish judges. See Modéer, Kjell Åke 2000. 658 Stiernhielm’s letter to Per Sparre, 17.3.1632, Samlade skrifter av Georg Stiernhielm, vol. 3:1, ed. Wieselgren (ed.), pp. 6-7. 659 “Demnach ex actis criminalibus befindlich, daß Beklagtin Mayge vnd die Saicketsche in diesem Infanticidy crimins beede participiren, vnd aber guettlichen nicht bekennen wollen, woh sie daß kindt gelassen, nach dem eß an die weldt kommen; Alß wurden sie beede ad Torturum condemniret, vnd sol der anfang deß tortureß von der Seickettsche gemacht werden,”EAA, 915/1/3 Pernauer Landgericht 1640, fol. 46.
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