the court of appeal as legal transfer – heikki pihlajamäki 247 thus used to the idea of unlearned peasants taking part in the legal decision-making. In Sweden itself, the traditional peasant participation had, by the time Swedes took over Livonia, been transformed quite smoothly into an element of the royal judiciary. Peasants, as part of the local courts of assizes, together with the crown-appointed judge (or his substitute) decided all legal cases. The so-called “blood cases,” that is crimes punishable with capital penalty, were tried in the district courts; however, a Court of Appeal always made the final decision in these cases. As I will show below, the judicial position of the peasantry in Livonia was limited to the manorial courts where they took part in deciding the legal cases arising from manorial life, excluding the blood cases. The practical difference between the lowest judicial stratum in Sweden proper and Livonia was huge. Livonian peasant courts were clearly manorial courts, and had no say in criminal affairs, strictly speaking, or those of the nobility. The Swedishhäradsrätter, by the time of the Livonian conquest, had been incorporated as part of a court hierarchy in the Romancanon sense of the word.676 The Swedes, although they pushed the law-finders out of the state courts, did not completely demolish the Livonian institution of law-finders and manorial courts. Manorial courts with their Rechtsfinder continued these courts were more important in Sweden than the traditional research in both Finland and Sweden, with national-romantic overtones emphasizing peasant freedom, has led us to understand. 676 The Swedish court hierarchy was, clearly enough, not yet fully developed in the 1630s and 1640s. The lack of clarity, however, had mainly to do with position of the royal jurisdictionvis-à-vis the appeals courts. To appreciate the distinction between the “modern” appeal and the medieval appeals courts, we need to see how the emergence of the appeal has been explained in European legal history. Bernhard Diestelkamp distinguishes betweenRechtszug and the actual appeal. The medieval Rechtszug is closely associated with the idea of Dinggenossenschaft, emerging from the writings of Max Weber and later developed by Jürgen Weitzel. In the medieval court, the judge did not participate in the decision-making, only representing the Herrschaftsgewalt and making sure that the proceedings did not deviate from the ordinary course. A decision was taken by the populace gathered at the court or their representatives, the law-finders (Urteilsfinder, Schöffen). Similar principles of legal decision-making prevailed in courts at all judicial levels, from the humblest manorial courts to the royal council. If the court was unable to arrive at a consensual decision, anOberhof or other authoritative organ could be asked for a “second opinion” in theRechtszug procedure. The final decision was given nevertheless in the name of the first court. The appellatio, in turn, was directed against the decision of a lower court, the appellate decision replacing the first-instance decision. In the German legal sphere, the appeal in this sense emerged during the second half of the fifteenth century. See Diestelkamp, Bernhard 1998 pp. 7-9.
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