Jarkko Tontti: Olaus Petri And The Rules For Judges
Associations – Journal for Social and Legal Theory Vol. 4., 2000, No.1, p. 113-128.
Ever since the year 1635 the Swedish and Finnish law books, i.e. the official collections of statutes in force, have contained a list of rules called ’Some General Rules Which a Judge Should Abide by Strictly’. Even though these 42 rules have never been officially enacted by any authority and they are not strictly speaking part of the positive law in force, they have still been included as a preamble to the law book for centuries. As a mixture of traditional Scandinavian written and customary law, Roman law and German law these general rules and principles are an essential part of the legal culture of both Sweden and Finland. I will now shortly clarify the historical origin of The Rules for Judges and discuss their value and importance from the contemporary point of view.
It is not certain who actually wrote The Rules for Judges, but traditionally their origin is attributed to the Swedish theologian Olaus Petri (1493/1497-1552). It is probable that Petri was at least their main author, if not the only one. The exact dating of The Rules for Judges is also unclear, but the date of writing appears to be around the years 1520-1540. They appeared in print for the first time in 1616 as an appendix to a book called ’Rättegånsoordning’ by Ericus Schroderus. When the laws of Sweden – and Finland as a part of the Kingdom of Sweden – were printed for the first time in 1635, The Rules for Judges were added to the collection of statutes as a preamble. It is worth noticing that it was a common practice already in the Middle Ages to include different kinds of ’judges’ rules’ to law books and in Petri’s time there were also other rules around than the ones we know today (Almquist 1951, 5-19, Holmbäck 1928, 270, Schmidt 1966, 50-62, Ylikangas 1983, 45-48).
Olaus Petri is best known as the leading Swedish theologian during the turbulent years of the Reformation in the 16th century. He was born in the town of Örebro in 1493 or 1497 and studied theology at the University of Uppsala. In 1516 he continued his studies in Germany at the University of Leipzig and received a degree from the University of Wittenberg in 1518 where he probably was in contact with the leading figures of the German Reformation, Martin Luther and Philip Melanchton. After returning to Sweden, Petri became the assistant of the Bishop of Strängnäs and from this position he started to spread the word of Reformation in Sweden. When Gustaf Vasa, who supported the Reformation for political reasons, became the king in 1523, he appointed Petri a secretary of the City Council of Stockholm where he acted as a judge, despite having no legal education. After the victory of the Reformation in Sweden Petri’s career reached its highest point: in 1531 he was appointed as the Chancellor of the State. (Almquist 1946, 19, Schmidt 1966, 17-22, Ylikangas 1983, 50-54).
Soon after the nomination, however, the relations between Petri and the king started to worsen. Reason for the king’s discontent was that in several of his writings Petri more or less directly criticised the king for his harsh actions. This critique also appears in The Rules for Judges; in several paragraphs masters and lords, which indirectly refer to the king, are criticised for collecting money by issuing illegal fees. The king soon showed what happens to those whom he has helped but who then turn against him: in 1540 Olaus Petri was condemned to death for high treason. He was later pardoned, but his political career was finished. He worked as a clergyman in Stockholm for the rest of his life. (Almquist 1946, 88-103, Schmidt 1966, 22-24, Ylikangas 1983, 54-61).
Petri received his legal knowledge mostly through practical experience when he worked as a secretary of the Stockholm City Council. In The Rules for Judges he reprimands the miscarriages of justice which he saw taking place in the administration of justice. His main points of interest are the illegal issuing of fines, the problem of how the truth can be found in court and the reliability of oaths and witnesses. It is interesting that in the question of justification of punishment Petri seems to have been several hundreds years ahead of his time. He argued that the aim of the punishment ought to be the amendment of the wrong-doer; too harsh and stigmatising punishments only increase the evil in the world (paragraph 25). Such thoughts became popular only during the time of Enlightenment and later, when the aim to reform and re-socialise the criminal began to displace the older views concerning the functions and aims of punishment (Ylikangas 1983, 77-81, Tulkens & van de Kerchove 1991, 309-312).
From a contemporary point of view, The Rules for Judges are of course for most parts out-dated. For example, they contain strong religious elements which are not appropriate in the administration of justice in modern secular societies. Their significance is still not only of historical nature, as some kind of a curious old relic. Even though they are not commonly quoted anymore or used as a source of law in legal practice, and some have even suggested that they should be removed from the law book (Castrén 1968, 44-50), The Rules for Judges still play a role in the contemporary legal thinking.
Petri’s rules can be seen as an important crystallisation of the central values of the Western legal tradition as it has developed in the Nordic countries, especially in Finland and Sweden. The demand for legal certainty, which is of pivotal importance in modern Nordic legal thinking, was also of great concern for Olaus Petri. According to Aulis Aarnio the expectation of legal certainty in modern terms consists of two main parts (Aarnio 1997, 190-193):
The requirement of avoiding arbitrariness, that is, the obligation of eliminating randomness from the legal decision-making. This is the formal side of the legal certainty.
The requirement of substantial equity and justice, i.e. the final result of the legal decision-making process must also be in accordance with what is right in society. This is the substantive side of the legal certainty.
The first requirement contains the demands of rational legal reasoning and the predictability of the result of the decision-making. Even the most predictable adjudication can, however, violate grossly the prevailing conceptions of what is right in society. Therefore the second requirement is needed. The judge must not only justify every interpretation by referring to law in force, but he or she must in addition see that the decision fulfils the demand of substantive justice.
In Olaus Petri’s rules the first requirement of legal certainty appears in paragraphs six and twelve: ”A judge must know the law fully by which he shall rule because he must see the law as his guide. A judge should endeavour to know the purpose in each and every law; otherwise it will be misused and skewed into something other than that which was intended.” The second requirement has its roots especially in paragraphs nine and ten: ”What is not just and fair cannot be law either; for it is on account of the fairness which dwells in the law that the law is accepted. All law is to be wielded with wisdom because the greatest right is the greatest wrong; and there must be mercy in justice as well.” It is not surprising that legal certainty and rational legal reasoning have been major themes in modern Nordic legal scholarship and also in legal practice. Ever since Petri’s time they have been firmly embedded in the prevailing Nordic legal culture as central values of the legal world.
From the point of view of hermeneutical philosophy, the influence of the Rules for Judges can be analysed with the notions of history of effect (Wirkungsgeschichte) and historically effected consciousness (Wirkungsgeschichtliches Bewußtsein), developed by Hans-Georg Gadamer, (Gadamer 1990, 305-312, Tontti 1998). According to this point of departure all forms of reasoning are historically effected by tradition. When we purport to interpret and understand a text or other cultural phenomena we approach it through prejudices (not in the negative sense, but as pre-understandings), which arise from the cultural background and tradition we live in. Our consciousness and our use of reason, then, are not free and transparent through self-reflection, but historically effected and conditioned. For example, the works of Plato have had an enormous effect on the European culture, not only because most philosophers have read Plato and quote or criticise him, but also generally the effect of his work has spread through the whole western culture and still affects various fields of human activity. We can be influenced by the history of effect without being aware of it; even if I had never read Plato, my own consciousness, which is formed in a culture on which his works have had a strong impact, would still be affected by his ideas. The same holds true for legal reasoning: not only do judges, advocates and law professors explicitly quote earlier cases and interpretations, but they are also indirectly conditioned by the legal culture and the tradition in which they have been educated, and which therefore shapes the structures of their understanding processes.
No doubt, Olaus Petri’s Rules for Judges have had and still continue to have a strong effective history in the Finnish and Swedish legal culture, which can be seen for example from the above mentioned fact that the demand of legal certainty still holds a central position in the Nordic legal culture, both in practice and theory of law. Also, some of Petri’s short and apposite proverbs – such as ’What is not just and equitable cannot be law either’ and ’An agreement sets aside the law’ – are still present in the contemporary legal practice and reasoning; not as unambiguous rules considered to be true, just and binding as such, but rather as relevant arguments or points of view which have to be taken into account.
In legal scholarship the effect of The Rules for Judges is even more evident and also more consciously admitted than in practical legal work. Aulis Aarnio has received inspiration from The Rules for Judges (Aarnio 1983, 3-18, Aarnio 1997, 188-189). In his work he has stressed the importance of legal certainty in court practice and developed the theory of legal reasoning significantly. The background or inspiration to this orientation stems from the passages of The Rules for Judges, especially from paragraphs seven, eight, nine, ten, twelve and thirteen. Petri’s key-concepts in these paragraphs, law and equitableness, the benefit of the common people and the grounds of acceptability of law are also key-concepts in many of Aarnio’s writings. Otto Brusiin, the first internationally distinguished Finnish legal theorist, also referred to Petri’s Rules for Judges in several occasions (Brusiin 1938, 59, 72, 76, 91,101-102, 105,143, Brusiin 1990, 99). The Rules for Judges have received the attention of some scholars outside Scandinavia too. Gerhard Schmidt’s monograph (1966), which is the most extensive historical study conducted on the subject so far, also contains a German translation of The Rules for Judges.
Olaus Petri and his Rules for Judges are still present in the contemporary legal practice and theory of Finland and Sweden. As all other cultural phenomena, they continue to exist as a chain of interpretations through which their content is transmitted forward, not by passive reproduction of the their ”original meaning”, but by constant re-interpretation, adjustment and partial change which enable them to meet the demands of the present world.
Aarnio, Aulis (1983). Arvot ja tuomarinohjeet, pp. 1-20 in Kekkonen, Jukka (ed.) Studia Juridica. Helsingin yliopisto, Oikeuden yleistieteiden laitos.
Aarnio, Aulis (1997). Reason and Authority. A Treatise on the Dynamic Paradigm ofLegal Dogmatics. Aldershot, Ashgate and Dartmouth.
Almquist, Jan, Eric (1946). Svensk Juridisk Litteraturhistoria. Stockholm, P.A. Norstedt & Söner.
Almquist, Jan, Eric (1951). Domareregler från den yngre landslagens tid. Medinledning och kommentar. Uppsala and Stockholm, Almqvist & Wiksells Boktryckeri Ab.
Brusiin, Otto (1938). Tuomarin harkinta normin puuttuessa. Zusammenfassung: Dasrichterliche Ermessen in Lückenfällen. Vammala, Suomalainen lakimiesten yhdistys.
Brusiin, Otto (1990). Der Mensch und sein Recht. Ausgewählte rechtstheoretische Schriften. Herausgegeben und eingeleitet von Urpo Kangas. Berlin, Duncker &Humblot.
Castrén, Erik (1968). Eräitä ”tuomarinohjeisiin” liittyviä mietteitä, pp. 44-50 in Juhlajulkaisu Tauno Tirkkonen. Vammala, Suomalainen Lakimiesyhdistys.
Gadamer, Hans-Georg (1990). Wahrheit und Methode. Grundzüge einerphilosophischen Hermeneutik. Tübingen, J.C.B. Mohr.
Holmbäck, Åke (1928). Våra domarregler, pp. 265-279 in Festkrift tillägnad Axel Hägerström. Almqvist & Wiksells Boktryckeri Ab. Uppsala and Stockholm.
Schmidt, Gerhard (1966). Die Richterregeln des Olavus Petri. Ihre Bedeutung imallgemeinen und für die Entwicklung des schwedischen Strafprozeßrechts vom 14. bis 16. Jahrhundert. Göttingen, Vandenhoeck & Ruprecht and Stockholm, P.A. Norstedt & Söner.
Tulkens, Françoise, van de Kerchove, Michel (1991). Introduction au droit pénal. Aspects juridiques et criminologiques. Bruxelles, E. Story Scientia.
Ylikangas, Heikki (1983). Olaus Petrin tuomarinohjeet, pp. 41-94 in Ylikangas, Heikki, Oikeushistoriasta ja sen tutkimisesta. Helsingin yliopisto, Oikeuden yleistieteiden laitos.
A Note on the Translation
The English translation of The Rules for Judges is a result of a joint effort by us and the responsibility for the contents and possible inaccuracies in the text lies solely with us. In addition, we owe special thanks to Raimo Siltala, Heikki Pihlajamäki, Topi Makkonen, Jukka Kemppinen and Aulis Aarnio for their valuable advice and help. We would also like to thank The Otto Brusiin foundation for financially supporting the project.
Linda Augustine & Jarkko Tontti
SOME GENERAL RULES WHICH A JUDGE SHOULD ABIDE BY CLOSELY
It behoves a judge to imagine himself first as a governor of God and the office he keeps as belonging to God and not to him; therefore, the judgement he pronounces is God’s judgement, because it is delivered in God’s office and for God’s sake; it is indeed God’s judgement and not man’s. And it behoves a judge to be watchful lest he hand down a false judgement for God’s sake, which by doing so condemns him to eternal damnation because he wreaks violence and falsehood out of God’s judgement and command which God has set down as law. If a judge wishes to judge right and studies law with his best efforts, but because of a want of understanding falters, and thereby renders a false judgement, let it be said in his defence that he acted with no malice aforethought, but the judging went awry notwithstanding his design, and, should any penalty happen to be levied, then it is to be a civil fine.
1. Because a judge is commanded by God to judge right, he ought to labour with all his might and craft to know the law. Just as someone who is ignorant of what is written in the Bible, and what its foundation and purpose are, is not an apt preacher, so too is someone unsuitable to be a judge who is ignorant of the content of the law and what its foundation and purpose are and how it ought to be employed. And thus those people who appoint men with no understanding to be judges, are in jeopardy and are clearly doing wrong. Because how can they who know nothing of the law judge right? And those people who dispatch men of no understanding to be judges, should fear lest they become abettors in the false judgements which will be handed down. And those who assume the office of a judge and yet are unable to fill it, are also themselves in jeopardy and wreak misfortune and woe upon themselves.
2. A judge is further advised to remember that just as he is a governor of God, so too are the people which he judges God’s own. It behoves him therefore to judge God’s people and not his own, at God’s behest not his own. For this reason, he ought to judge God’s people in the same fashion as he himself would wish to answer to Him, whose people they are.
3. A judge would be wise to remember that the office of a judge is for the avail of the common people and not for the avail of the judge himself, and therefore he must mind it for the good of the common people and not for his own good, even though good will come to him when he tends to it well. Moreover, he ought to use his office to seek the common good, and not his own good. The judge is there for the common people and not the common people for the judge.
4. Of what is told above, it may be plainly beheld that they who drive the law awry so that they might wrest plenty of penalty fees are imperilled in the sight of God; because the law has not been handed down for the sake of penalty fees but for the sake of justice, for the benefit and good of the common people and not for the purpose of unlawful taxing, wrack and ruin. And those bailiffs and governors who endeavour merely to wrest plenty of penalty fees for their lords are their lords’ foes. Because that which has been unlawfully collected forfeits everything which the lord himself has lawfully collected. And therefore a lord has no greater foe than his own bailiffs who are like this; because one unlawfully gotten coin forfeits ten which have been lawfully gotten. And therefore, no one causes a greater vexation to his lord than he who allows unlawfully gotten penalty fees to be put into his lord’s coffers, because he then forfeits all the lawfully collected goods on deposit in there; as it is said: Strong must be the locks which guard ill-gotten money; and what is gained by sin, is lost in sorrow. And the reason for this is that when God, who set up the office of a judge, beholds that it is about to be used to promote self-advantage, rather than the common good, and that the office is being used to foment violence rather than to ward against it, as ought to be done, He turns our gain into loss; and it is the due wage for our greed. And so God visits upon us wars and disturbances or other great encumbrances, in which we forfeit both those goods which have been lawfully gotten as well as those goods which have been unlawfully gotten; and this is right; when we inflict violence upon they, whom we should safeguard and extort money by these means, others will come who in turn will inflict violence upon us, so that which has been collected through violence must be forsaken on account of violence.
5. Whosoever chooses not to heed this, will surely learn for himself from experience. God will not suffer violence to go unpunished, especially when it is inflicted by those who, by virtue of their office, should thwart it. So let each lord take pains whom he chooses to dispatch as his governor or bailiff, and let the lord say to him: Go thou and be loyal and obedient to me, and let no unlawfully gotten monies or penalty fees come into my hands, otherwise you will wreak harm upon me. This pertains to those who corrupt the law to wrest penalty fees and wreak violence and injustice upon the poor; but this is not uttered to be understood as pertaining to lawfully and duly acquired penalty fees.
6. A judge must know the law fully by which he shall rule because he must see the law as his guide.
7. All laws must be such that they are for the common good and for that reason when a law begins to wreak harm it no longer is law but rather iniquity and falsehood and must be forsaken.
8. It is better to have a good and wise judge than good law, because he can always settle the matter fairly. But where there is a wicked and unjust judge, there good law is of no succour because a judge may skew and twist the law according to his own mind.
9. What is not just and fair cannot be law either; for it is on account of the fairness which dwells in the law that the law is accepted.
10. All law is to be wielded with wisdom because the greatest right is the greatest wrong; and there must be mercy in justice as well.
11. The law does not countenance all that may go unpunished because the law book cannot contain all the kinds of crimes.
12. A judge should endeavour to know the purpose in each and every law; otherwise it will be misused and skewed into something other than that which was intended.
13. The best law is the benefit of the common people; therefore, whatever is seen to be beneficial for the common people should be deemed law, even though the words of the written law would seem to command otherwise.
14. The custom of the land, if it is not unfair, should be reckoned as the law, according to which judgements ought to be made.
15. Wicked ways avail no man, that is to say, that no man may profit by saying that there are many others who do as he has done if what he has done is found to be against the law.
16. Common proverbs are often deemed to be law, and they are law, such as the following:
1. Debts unpaid should worry he, who dares become a surety.
2. Fists shaken and shook in anger and ire, count not as crimes in many a shire.
3. An enemy is not fit to be a witness.
4. An agreement sets aside the law.
5. Ill-gotten is ungotten.
6. Cure not evil with another dose of evil.
7. Let no man be his own judge.
8. Let no man be judged by the word of one.
9. No valour, the man, no value, his word.
10. The striker offends.
11. Neither violence nor vagary is the law of the land.
12. All that looks true is not true.
13. One rallies for allies.
14. Man defends what glad him rends.
15. Not by lashes, but by laws shall one live among others.
16. A whipping for he who can’t pay the fee.
17. A deed confessed is a deed witnessed.
18. A done deed cannot be undone.
19. To repay what’s broken, offer like token.
20. A stranger’s word lacks worth.
21. He who misuses his liberty, loses it.
And many other such common proverbs, which are plainly evident, are often deemed to be law, and therefore, it is meet to judge by them. A judge ought to be well-acquainted with such common proverbs; they, like other principles, serve as a foundation from which the law is drawn.
17. Both the will of the king, providing it is just, and that to which the common people have consented, are deemed law.
18. Whoever violates the purpose of law violates the law, even though it would seem that he is abiding by the letter of the law; and it often happens here in Sweden that the law is skewed when penalty fees are pursued, despite what the lawgiver had in mind; and here violence and envy abound.
19. All law is set down for the sake of justice and fairness and not for the sake of penalty fees. Because a fee is a chastisement for those who breach the law; but the law would best remain unbreached than breached and would have it that there would be no need for penalty fees at all.
20. Where there is no written law, the just custom of the land should be reckoned to be law and judgements ought to be made according to it.
21. Like crimes demand like chastening, and therefore no heed should be paid to whether one be prince or pauper, but the one must be chastened like the other when their crimes are like.
22. The judge must address with temperance those who come before the court, otherwise it will be suspected that he will not judge right, and such doubts will come into the mind of he to whom the judge speaks harshly. Because people do not come before the court to be scolded or rebuked but to seek justice. But if either party needs to be rebuked, then let it be done only after an inquiry has been made into the matter and judgement pronounced, but not before.
23. Let a judge, while sitting in court, not grow wrathful with respect to any party, for wrath will encumber him from making the right decision in the case.
24. Let a judge be loath to render his judgement in too much haste, ere he has taken time to study the matter fully because a hasty judgement is rarely good and right.
25. There is nothing of greater worth to a judge than wisdom so that he knows when he must be harsh and when he must be mild for the sake of the law, because all chastening must be for the purpose of curing, and, if possible, chastisement must not hinder the one who is chastised from mending his ways. This is what happens to those who have stolen: they are sent to the block, their ears are cut off and they are banished from their village. If they flee to distant lands, where no one knows them and try to mend their ways and live decently, they will not be trusted; and so the chastening will encumber the one who is chastened and he will plunge into despair and will become more aggrieved than ever, and it would well nigh have been better had he lost his life in the first place. The same happens to harlots who are put in a pillory and ordered away from the village; when they only had carnal knowledge of one or two men, they will then turn into harlots for all men, which will not reform them, but a chastening of this kind will give them cause to worsen. Therefore, a judge must act in such matters wisely so that he does not cause wickedness to grow, but the law always demands the mending of ways and it must be used for that end.
26. Let a judge be loath to pass judgement too hastily lest a man’s honour and good reputation be harmed; there are people, acting rather unwisely and also committing a great evil, who, in order to get penalty fees, subject a man or a woman of good reputation to public outcry and ill-repute, even without reason to defame him or her and prod them to clear their names by swearing a legal oath. Judges of this kind work against their office and orders: the office of a judge is such that he must always be more fain to help than to hinder, to safeguard a man’s honour and good reputation, not to aggrieve them, providing that the case, with its evidence and grounds, has not yet waxed so notorious as for protection to be of no avail. And thus it is a cursed thing, which God will avenge harshly, that the seeking of penalty fees should cause the good reputation, prestige and honour of an honourable man to become fouled in this way. And the law in Sweden does not countenance this behaviour; it does not allow accusations which pertain to someone’s honour and prestige or life to be believed hastily, without the testimony of six men. And it is evident that the law does not wish every piece of idle rumour which comes up to be believed; that is the reason why the law demands so many witnesses.
27. It is plainly wrong, and can wreak much wickedness, when, on the basis of idle talk and gossiping, a judge causes or compels someone to clear his name by swearing an oath, as long as there are no other grounds: because someone’s foe can easily, out of envy and malice, spread rumours about him. One sees it happen often how false rumours come up and spread far and wide. If they, about whom such rumours have arisen, were required to swear an oath, a great injustice would be wrought against them; it would be better if the one who kindled the rumours be put on trial and be required to prove them.
28. The judge should not lightly and without need allow someone to clear himself by oath, but rather the judge ought to employ other means to get the squabbling parties to settle. Because it is to be feared that where there are lots of oaths sworn, there will false oaths be sworn, which the judge must stave off, especially here in Sweden, where the fashion is to swear lightly.
29. If the plaintiff is bereft of grounds, evidence and even second-hand evidence for his cause, then the defendant’s nay is as good the plaintiff’s yea, and no oath is required. But, if the plaintiff does possess some grounds, evidence or second-hand evidence or even a witness on his side, then his yea has greater sway than the defendant’s nay, and he can then get the defendant to swear an oath. If the defendant is accused of something or rebuked, he does not instantly have to swear an oath to clear himself, otherwise he would suffer an injustice; if the plaintiff has at least half-proof on his side, then he can make the defendant swear an oath. But if the plaintiff has full proof and grounds for the cause in which he accuses the defendant in that case, the defendant does not swear an oath. Because no one is allowed to swear an oath when the grounds and evidence are plain; but instead the defendant will be adjudged guilty. But he is allowed to swear an oath to clear himself when he is accused of something with half-proof.
30. If the plaintiff is bereft of any other grounds to brace his cause, other than that he wishes to swear an oath to affirm his being right, then, with that kind of oath he cannot make the defendant swear an oath: because an oath cannot be sworn against another’s oath; and an oath cannot buttress the plaintiff’s side, but rather the side of the defendant. With an oath, one can answer a charge, but may not sue, and let no one swear money to himself.
31. If someone is accused of treason or of another grave crime concerning life or honour and reputation, and there are no grounds upon which he may be found guilty, and he himself cannot clear himself with an oath, then the law book states that a board of twelve men ought to be convened; if they acquit him, let him go free, if they find him guilty, let him be guilty. But sometimes the case is so unclear that the board decides that it can neither acquit him nor find him guilty, and the case remains as it was before. But that is not rightly stated because if the board cannot find him guilty, he is then to be acquitted and he must be set free because he who cannot be found guilty is to be freed. And what kind of justice would it be if a man against whom nothing can be proven is tortured and persecuted? And let us always be more disposed to help than to harm. In all proceedings let the general rule be that if cases are so unclear that what is right cannot be found, then the accused must be set free, even if he has broken the law. Because it is better to set free he who is guilty than to torture and persecute he who is innocent. Let not the judge persecute anyone if he lacks clear grounds and proof to do so; otherwise, it will be violence and injustice; and no good will come to him.
32. Because our people here in Sweden are rather fain to swear oaths, it would be best if a judge asks oath-swearers on what grounds they swear their oaths and whether they themselves were there in person and whether they know that the accused is innocent, or is there other second-hand knowledge that they can make assurances about by swearing an oath; and let the judge be loath to invite someone to come forward and swear an oath without having first inquired whether he is the right person to swear such an oath.
33. If the defendant has sound evidence or witnesses on his side by which he can refute the plaintiff’s cause, it is wrong to demand that he should also clear himself by swearing an oath. Because the defendant must avail himself of his witnesses and evidence if they are sound and acceptable to the judge. But if the grounds are wanting, the defendant should swear an oath: he who cannot defend himself with evidence and witnesses shall defend himself by swearing a legal oath.
34. Those who swear an oath at another’s behest usually swear in the following manner or in a similar manner: so help me God that his oath be true and not false. There is great peril in swearing such an oath if the matter is not well-known, and it is to be feared that many false oaths are sworn which vex God sorely, which the judge must not allow. Because of this, an oath-swearer should swear in the following or like manner: so help me God as I, on the basis of these grounds and other proof which I know about this matter and on the basis of the dealings I have had with this man, I believe his oath to be true and not false. And so, this is how oath-swearers might make the right kind of oaths and not the wrong kind, and even if the defendant himself may have sworn falsely, it is better that the wrath of God be abated by there being only one who has falsely sworn rather many who have falsely sworn. When therefore six or twelve more or less honest and entrusted men have sworn that they believe that the accused is not guilty, so let the judge on the basis of the belief of such honest men acquit him, and then the judgement is based on the oath of he who has sworn the oath to clear himself and on the belief of those who have sworn with him, and this shall be ample reason and ground for the judge to acquit him. And if in such a case a false oath is sworn, no one else becomes a perjurer than he who is guilty of the crime, providing that it cannot be proven that some one of the oath-swearers knew that the accused is guilty; in this case the oath-swearer is also a perjurer and ought to be chastised.
35. Every judgement must be based upon clear grounds and evidence, and let the judge decide only according to the grounds and evidence. If the plaintiff cannot prove anything, then the defendant is free, because the plaintiff must have grounds and evidence to uphold his cause. Deeds must not always be judged solely on the basis that they were in fact committed, but it must be made clear what the intention and state of mind were when they were committed. When judging a deed, it must be beheld what the doer’s intention was, whether a deed was wrought with malice aforethought or not. And therefore, he who stealthily takes from another cannot on every occasion be found guilty of theft, because it may happen that he took something by accident and imagined that the goods which were not his own belonged to him, or some other similar case; or that one person might steal out of malice while another might steal out of dire penury. No one is to be deemed guilty of theft if he did not knowingly nor with stealth take from another that which belonged to the other man. And so it is in all other cases that intention and state of mind are to be looked at rather than the deed itself.
36. Because here in Sweden it often happens that when two parties are in dispute and quarrel with each other, one party calls the other party a thief or something like that, and the one who was accused summons the accuser to appear at court, saying that the accuser claims that he stole or did some other like deed and this way wishes to harm him, and that he, the accuser, should suffer the same punishment or lose his honour. Here now the judge should act wisely and make a distinction between blame and defamation; it is quite a different matter when in anger and haste, someone calls somebody else a thief or something like that, and when, with malice aforethought, someone tries to testify falsely about a man’s guilt at law. Because the two crimes are not the same, the punishments should not be the same either. The judge should also study with care whether the case should be seen as one of defamation or not, following what the law book has to say on the matter.
37. Let the judge keep out any unsuitable testimony because, in that case, false oaths are often sworn, and let the judge study whether the witnesses are for the defence or are foe and whether they have such grounds and evidence with them as they ought to have and whether they are perjurers or those who have lost their honour and whether the witness is so well-known that someone knows whether he is to be believed or not, if such faults are found, the testimony is not valid. Also let no one testify in his own case, providing that he does not testify against himself, because then it is a confession.
38. Let no one be judged on the basis of a confession, which he has been prodded to make because of having been tortured and persecuted because such confessions tend to be false and it often occurs that because of torture, many confess something which has never been true and never took place; providing that it is not the case that in such a confession, grounds are found, on the basis of which judgement may be made. And great skill is needed to know how such torture and persecution are to be wrought, to keep the innocent from being tortured and vexed; and it is clearly a case of violence when, by means of a rack or by other such devices of torture, people are harried and it would be better to refrain from using such devices because wrong is so often done with them. Therefore, this cannot be allowed to take place except for high treason and for capital crimes and then, many bailiffs do wrong when they very bunglingly force those whom they have in custody to confess, and, right after the same confession, be it true or false, decide to chastise the confessors either corporally or by having them pay a penalty fee, saying that they have confessed the deed, although, later, after having been released from the torture, they deny it. When such things happen, they happen mostly for the sake of money and that is clearly violence and injustice, which the lords must not countenance.
39. Many judges also have it in their minds that when their judgement is overturned, it wounds their honour and it often comes from this that many, when defending their judgements, say to themselves that they wish to defend their honour, but such talk comes from a want of understanding. When a judge passes judgement according to his best knowledge and based upon the grounds brought before him, he is free of guilt. If the matter then comes before someone who has more knowledge and better evidence is brought forth, and then the matter is adjudged differently, he should then be able to bear that and it is no disgrace for him. But if it is found out that he handed down a false judgement because of bribes and gifts, prejudice or friendship, then little has his honour profited. If a doubtful matter comes forth, and there is neither written law of the city, nor common law, nor established custom of the land about the matter according to which judgement could be rendered, so let then the counsel of wise and good men be heard and let the matter be adjudged according to the best understanding and conscience, so that the matter would be resolved, for the office of a judge demands that he resolves disputes.
40. If a matter be unclear, then the judge ought to be more inclined to favour the accused than the accuser; let the one who has the risk receive the benefit and let the one who receives the benefit and the profit bear the risk.
41. In all matters, the judge should first know what name is to be given to the matter, whether it is a violation of an oath of peace, theft, an injury wrought on purpose or by accident, or however the done deed is to be named, and then it shall be judged according to what happened.
42. He who does not remain within the purpose of the one who made the law corrupts the law, and it is contrary to the counsellor’s oath where it is pledged that the law shall not be distorted. No one may bestow upon another a right greater than he himself holds, and therefore, a child cannot inherit a greater right than his parents held, and no one may confer upon another a greater mandate than he himself holds.
43. And this has now been said to the judges as a small piece of advice, and it is well agreed indeed that when these rules are followed, as ought to be done within the bounds of law, then penalty fees abate and the wrath of God also lessens and justice and fairness abound among the common people, and this is more important.
Ill-gotten fees enrich no earthly lord:
But law and justice are the prize and honour of the Lord!