the court of appeal as legal transfer – heikki pihlajamäki 243 answers. After the torture Hans was asked, thus roughly according to the theory of judicial torture, whether he still maintained what he had said under torture. Hans replied affirmatively, “after which theactus inquisitionis was terminated for this time, and the suspect was taken back to his cell” (Womit der Actus inqvisitionis vor dieß mahl geendiget, vndt der gefangener wieder zur vorigen hafft geführet).665 A royal letter of December 1686 prohibited judicial torture. The letter, a response to aréférée legislatif that the Dorpat Court of Appeal had made, seems to have been effective. At least the case material of this study shows no instances of judicial torture after 1686.666 What made Sweden different from Livonia, as far as torture was concerned? Certainly the fact to which I referred above that the Swedish lower courts were almost completely lay-dominated, whereas the Livonian courts were taken over by legal professionals as judges, less by advocates in criminal than civil cases, from an early date. An institution potentially as dangerous as judicial torture could only be trusted in the hands of controllable machinery, which preferably needed to consist of legal professionals.667 A developed Roman-canon systemof appeals suits acriminal procedure based onleuterationor judicial torture, or both, poorly. According to Europeanius commune, criminal cases decided at first instance could not be appealed. This was the case in Sweden as well, and Livonian law was no different. The prohibition of appeals concerned only those criminal cases in which the mode of procedure was inquisitorial. Appeals were, however, allowed in accusatorial criminal cases and, of course, in regular civil cases. In 1640, two of the ten appeals cases were accusatorial criminal cases, both dealing with slander.668 The rest of the cases appealed in that year were civil, dealing with matters such as disputed land, fishing rights, and tort payments. When steward (Arrendator on Luhde Manor) Elias Diricksen was sentenced to a20 daler fine for unlawfully obstructing the construction of the alehouse (Kneipe) on Colonel Caspar Ermiss’s lands, both parties appeal665 EAA, 1001/1/723, Pernauer Rat 1668, fols. 64-66. 666 At the end of the 1670s, several cases of judicial torture still occurred at the Pernau Lower Court. See the case of Oyo above; also EAA, 915/1/61, Pernauer Landgericht 1678 (murder) andEAA, 915/1/4 Pernauer Landgericht 1641(sodomy). 667 See, e.g., Pihlajamäki, Heikki 2007. 668 LVA, Akten des Livländischen Hofgerichts 1630 –1709, 109/1.
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