Heikki Pihlajamäki

The Painful Question: The Fate of Judicial Torture in Early Modern Sweden


The Comparative Context: Langbein and Judicial Torture
Three decades ago, John Langbein published an influential book on medieval and early modern judicial torture.¹ Before Langbein, Enlightenment philosophers such as Beccaria and Voltaire had traditionally been credited with the final abolition of judicial torture in the leading European states during the latter part of the eighteenth century. Langbein dismissed the traditional explanation as a "fairy tale," claiming that the use of torture had in fact declined in major European countries since the sixteenth and seventeenth centuries, well before its formal abolition. In the medieval statutory or Roman-canon theory of proof, judicial torture was originally designed to produce confessions in cases of serious crime in which "full proof" in the form of confession or two eyewitnesses was needed to convict. The argument that Langbein advanced is that the emerging new modes of punishment for serious crime, such as forced labor, transportation, and imprisonment, enabled European criminal courts to take full advantage of the medieval legal institution of extraordinary punishment, poena extraordinaria, which could be imposed without confession if the evidence was otherwise convincing. Extraordinary punishment was by definition something else than the ordinary punishment, usually less than capital punishment. In practice this meant milder punishment on less evidence. Langbein's pivotal point is that the rise of the extraordinary punishment rendered torture unnecessary in many cases, although it still remained legal. Causing a revolution in the law of proof, free judicial evaluation of evidence thus in fact developed alongside the old statutory theory of proof, which now lost its monopoly.²	1
Langbein's arguments have recently met with criticism. According to Mathias Schmoeckel, alternatives to torture had been available in legal theory practically ever since the interest in judicial torture began to grow in the thirteenth century. In fact, the poenae extraordinariae, together with judicial torture, formed part and parcel of the same package of medieval crime control. Schmoeckel does not, however, advocate the return of Langbein's fairy tale. Instead of explaining the abolition of torture by the changes in the system of punishment and the law of evidence, Schmoeckel stresses the importance of the mounting philosophical and theological criticism of torture in the early modern period. In the humanist spirit, the critics emphasized the integrity of the individual, now considered more important than the traditionally paramount Staatsraison (raison d'état). Fundamental changes in epistemological views in the late seventeenth and early eighteenth centuries emphasized probabilities rather than objective knowledge, on which the statutory theory of proof had been based.³	2
Langbein's argument takes much of its force from the case of England, the paradigmatic example of a country without judicial torture. Thus his reasoning is specifically designed to explain the lack of systematic judicial torture there. In continental countries, judicial torture was a professional affair. It grew in legal literature from the thirteenth century onward and could only be administered by legal professionals, at least in its most sophisticated, learned form. This professional character of continental judicial torture was, according to Langbein, an important obstacle to its ever being systematically used in the English courts. Professional bureaucracy could be controlled, whereas the laymen in charge of the English common law courts "were unpaid amateurs, and it would have been unthinkable to allow them to operate torture chambers of their own."⁴	3
The Swedish experience constitutes a tempting test case for Langbein's theses. Both in England and Sweden, as this article will argue, judicial torture remained exceptional and was never established as a systematic practice. In both countries, judicial torture was generally considered illegal, and a significant proportion of the known instances of torture involved political and religious crime or witchcraft. Furthermore, laymen dominated the Swedish courts, just as non-jurists were running the English common law courts. Both England and Sweden deviate from the continental pattern in these respects. In order to understand the Swedish development, the lay domination of the judiciary needs to be highlighted perhaps even more than Langbein has for England.	4
The Swedish experience thus raises two questions. Was the lay domination of the Swedish judiciary related to the rejection of judicial torture? Did the Swedes resist judicial torture because extraordinary punishments in cases lacking full proof came into use in Sweden, as they did in the leading states of Continental Europe? Whereas this article obviously cannot confirm or refute Langbein's theses for the whole of Europe, I hope nevertheless to be able to establish that his explanations go a long way in helping to understand the fate of judicial torture in Sweden. The civilization theories of Norbert Elias and Pieter Spierenburg will, furthermore, prove useful in accounting for the disappearance of other forms of inhumane treatment of prisoners in eighteenth and early nineteenth-century Sweden.	5
Some brief observations on judicial torture in Tudor England will serve as a comparison. I will then move on to legal historiography to discuss the contributions of legal history to the understanding of judicial torture in Sweden, and offer my own view as to the Swedish situation. Finally, the Swedish experience will be compared to the history of judicial torture in England.	6

Judicial Torture in Tudor England: The Onslaught on Political and Religious Crime
Legal historians generally agree that the English common law courts never came to rely on judicial torture in any important or systematic sense.⁵ It was unnecessary, because trial juries could convict on less evidence than was required for torture in continental law. Besides, and as already mentioned, it would have been difficult to entrust torture to the amateurish court officials who ran the English courts.⁶ Hence Sir Thomas Smith could proudly assert in his De Republica Anglorum (1565, published 1583) that "torment or question which is used by the order of the civill lawe and custome of other countries to put a malefactor to excessive paine, to make him confesse him selfe, or of his fellowes or complices, is not used in England, it is taken for servile."⁷	7
However, in the Tudor period judicial torture was adopted for regular use to investigate certain serious crimes. Langbein has located eighty-one torture warrants issued by the Privy Council between 1540 and1640. Most of the suspected crimes were political or religious, with a quarter of the warrants involving ordinary crimes such as burglary and horse stealing.⁸ The immediate purpose of English torture, which reached its zenith in the 1580s and 1590s, was to ward off the perceived threat from political opponents of the Elizabethan state, particularly Roman Catholics.⁹ In the 1620s torture practically ceased, probably because of the decline in the political threats against which it had been used.¹⁰	8
The era of judicial torture in England thus proved to be short. Torture never spread from the chambers of the Tower and Bridewell to the ordinary courts of common law, its use being restricted to what in modern terminology is best described as a mixture of an administrative body and a special court. As we shall see, this brief history of English torture resembles a late sixteenth-century episode of Swedish torture.	9

Judicial Torture in Early Modern Sweden: The Changing Views of Legal Historians
Not only did England resist judicial torture. Sweden too was arguably a land in which torture made little progress. Here though, we must begin by addressing a difficult historiographical problem: like the English case, the Swedish case has a certain ambiguity. Scholars have insisted that the Swedes did make use of torture, and we must therefore begin by discussing whether that in fact is the case.	10
In his De iure sveonum et gothorum vetusto (1674), Johan Stiernhöök, "the founder of Swedish legal history," denied that torture had ever existed in Sweden. Stiernhöök claimed that the Swedes, "the brave and free people," had always preferred other methods of proof to torture, which they had disliked.¹¹ Until the nineteenth century, historians of Swedish criminal procedure followed Stiernhöök in their views about torture. The general understanding of the place of torture in Swedish legal history began to change after that. Many legal historians will now claim that it was used at least to some extent. Recent research has suggested that torture was in fact an important facet of early modern Swedish criminal procedure as it was elsewhere in medieval and early modern Europe. Are we witnessing a triumph of modern, enlightened historiography?	11
This is hardly the case. Legal historians have not emphasized this, but, as far as judicial torture is concerned, Swedish legal history truly differs from the continental main stream. First, like England but unlike the leading countries of continental of Europe, judicial torture was never legalized in Sweden. This claim has become controversial, and not the least so because historians have failed to grasp torture as a changing, historical category. As I will argue, changing sensibilities have had an effect on what was considered to be acceptable treatment of criminal offenders. Second, the available evidence supports the conclusion that systematic judicial torture never existed in Swedish legal practice, an argument that does not automatically follow from the fact that torture was illegal.	12
In his recent book Humanität und Staatsraison, Mathias Schmoeckel tells the story of the law of torture at ius commune with unprecedented precision and depth. For Schmoeckel, Sweden was no exception to the general European trend. Along with the inquisitorial procedure, the statutory theory of proof gained ground from the sixteenth century onward. As confession thus became the most important means of proof, pressures grew to introduce torture by which confession could be obtained. Therefore, torture was introduced into Sweden in the sixteenth century, according to Schmoeckel, and remained in use even after the introduction of the influential Law of the Realm of 1734.¹²	13
In the latest study on Swedish torture, Björn Åstrand severely criticizes earlier legal historians for adopting too narrow a concept of torture. According to Åstrand, "the failure to define clearly what is meant by torture, and more or less implicitly to commit oneself to the most often narrow understanding [of torture] has led to a denial of the position of torture in the Swedish legal tradition."¹³	14
Much of the earlier twentieth-century literature also holds that Swedish criminal suspects were subject to torture. Opinions divide, however, as to whether torture was part of the routine or not, and whether it was legal or not. In 1911, Gemmel asserted that although the Swedish Law of the Realm of 1734 prohibited "all painful questioning in order to obtain confession," the same statute approved of the use of "hard prison" (svårare fängelse) as a means of acquiring confessions. In addition, torture had been used "beside the law and so rather extensively."¹⁴ According to Göran Inger, the law allowed for "a certain degree of torture, even though the same provision had earlier forbidden the judge" from torturing in general terms. "A certain degree of torture" referred to hard prison.¹⁵ Although the limit between hard prison and judicial torture was unclear, Inger seems well aware at least in his later studies of the difference between the two institutions, which his archival findings confirm as well.¹⁶	15
Contrary to Gemmel, Åstrand, and Schmoeckel (and, to some extent, Inger), Henrik Munktell emphasizes in a lengthy two-piece article of 1939–40 that although torture came to be used in certain isolated and exceptional cases in medieval and early modern legal practice, it was never legalized.¹⁷	16
Whereas some historians seem to talk about the reality of legal practice, Munktell emphasizes the law in books. Intuitively, the "realist conception" of torture may seem easier to accept than Munktell's "formalist" view. The problem with the realist conception of torture is, however, that it seems to rest on an anachronistic, post-Enlightenment definition of torture, which is far wider than the scope of the ius commune judicial torture. As far as torture is concerned, the law in books matters. Moreover, modern legal historians have failed to provide the Swedish use of hard prison and judicial torture with an adequate comparative context. This lack needs to be remedied, for comparison can considerably help to understand the hesitancy that the early modern Swedes felt toward judicial torture and the reasons why they were inclined to resort to the institution of hard prison instead.	17
Does judicial torture necessarily have to be treated as an object of "reception," whatever meanings modern legal historians may assign to this controversial concept? Could judicial torture not emerge as a purely domestic phenomenon? It was precisely this kind of question that Eberhardt Schmidt probably had in mind when he published his Inquisitionsprozeβ und Rezeption in 1940, establishing the view that the inquisitorial procedure and judicial torture had been developed in medieval Germany independently of foreign influence. A few decades later, Schmidt's arguments were shattered, first by John Langbein, and then by Winfried Trusen, who showed that the influence of Roman-canon law had been instrumental in shaping the medieval German criminal procedure.¹⁸ As Trusen put it, "nowhere on the Continent has torture been introduced into secular court practice without the direct or indirect influence of Roman law."¹⁹ To the extent that beginnings of judicial torture were introduced there, Sweden is no exception. When we talk about the theory or practice of judicial torture, we cannot avoid talking about the influence of the ius commune, and not about an indigenous development.	18
The following sections will explain the Swedish resistance to judicial torture. The Swedish attitudes toward the European ideas of judicial torture will be approached from the parallel points of views of legal theory, legal practice, and statutory law. This approach will show that what started as reception, albeit on a minor scale, of judicial torture, mainly in the sixteenth-century lower court practice, was gradually suppressed in the seventeenth-century high court practice, legal literature, and legislation. As we will see, the trend toward the prohibition of judicial torture is not entirely straightforward, and neither is the trend toward assimilating hard prison into torture.	19

The Sixteenth Century: Judicial Torture Gains a Foothold in Sweden
An important part of the sixteenth-century continental criminal procedure, it is hardly surprising that judicial torture held a certain appeal for the Swedes as well. And sixteenth-century Sweden was in fact not a completely torture-free zone. The use of judicial torture is well recorded in the minutes of the sixteenth-century Town Court of Stockholm, where Åstrand has detected twenty-four cases.²⁰ One should not, however, generalize too much from the Stockholm records. If European influence was present anywhere in Sweden, it was in its capital. We have no knowledge of torture having been used systematically elsewhere in Sweden either in lower or higher courts.²¹ For the purposes of this study, a rather extensive sample of criminal cases from two Finnish lower courts between 1640 and 1744 was researched, but the protocols contain no signs of torture.²²	20
In addition to Munktell's study mentioned above, however, Inger's archival studies reveal isolated cases of judicial torture in seventeenth-century Swedish court practice. In comparison to England, it is interesting that these cases were mostly related to the crimes of treason, religion, and witchcraft. The high courts continued using torture at times throughout the seventeenth century, but not even the high courts in their regular day-to-day judicial work had recourse to torture, and Inger has found very little signs of torture in the lower courts.²³ Hard prison (svårare fängelse, hårt fängelse, or allvarsamt fängelse) was used more frequently, but even that was rare.²⁴ Hard prison typically consisted of handcuffing and hanging the suspect up on the wall to make him or her confess.²⁵	21
Although the distinction between torture and hard prison was not crystal clear, the difference existed. During the later half of the seventeenth century, torture in the technical, ius commune sense of the term became prohibited, and lower courts could only use hard prison. Judicial torture still continued to be used even after it was basically prohibited, but its use was confined to special crimes considered particularly harmful to the state, such as crimes against the state and witchcraft. Judicial torture was thus no ordinary business, and it did not apply to ordinary crime. Lower courts were not authorized to torture, the high courts and the royal witchcraft commissions (trolldomskommissionerna) acting as special courts that could resort to judicial torture.²⁶ In fact, the work of the royal witchcraft commissions in the witch-hunt of 1668–1676 was largely based on systematic judicial torture. The practice was openly revealed in the protocols and, following the ius commune literature, legitimized by classifying witchcraft as crimen exceptum, a special crime that called for special measures.²⁷	22
The virtual nonexistence of judicial torture in Sweden is strikingly different from most European regions, such as Germany, France, Spain, or Livonia, in which judicial torture was used routinely and also recorded in trial minutes.²⁸ As I wish to show below, the infrequency of judicial torture (and hard prison) is intimately related to the lay-dominated character of the Swedish lower courts. As will also be shown, interest in judicial torture began to develop in Sweden at a time when the institution was already declining in other parts of Europe because of the rise of poena extraordinaria.	23
Another aspect of Swedish sixteenth-century torture still needs attention. Like the Tudors in England, the Vasas in Sweden used torture to suppress political opponents of the Crown. Gustavus I Vasa (1523–1560) had occasionally tortured his opponents, but his son Eric XIV (1560–1568) was notorious for harsh treatment of his foes. Jerker Rosén records several cases of torture in Eric's High Council (Höga nämnden), which the king founded almost immediately after the death of his father in 1560.²⁹ Eric's Instruction for Bailiffs expressly allowed for torturing those accused of treason. The High Council was almost entirely composed of representatives of the bourgeoisie from 1561 onward, with some lower nobility in the ranks, and there was also legal expertise in the council's ranks. The composition of the council followed directly from the persecution of the aristocracy that Eric had started that same year. Not surprisingly, most of the torture victims were political foes of Eric and his supporters, and most belonging to the high aristocracy. Cases against private people were rare.³⁰ It is difficult to say whether those convicted were tortured in order to gather information on their accomplices only, or whether, as Inger suspects, to have the suspects confess before their execution (convictus et confessus), so that imposing capital punishment on innocent suspects could be avoided.³¹ The end of Eric's reign in 1567 also meant the demise of the infamous High Council, and in his ensuing trial Eric and his regime stood accused, among other things, of having used torture.³²	24
Judicial torture at Eric's High Council resembles torture at the Privy Council in important respects. The most striking similarity is that both organs operated at the highest governmental level and directly under the monarch's authority. Torture could therefore remain under control, and judicial torture was certainly not entrusted to ordinary lower courts to use in their everyday business. In both England and Sweden, judicial torture was limited to political trials and was concentrated in a relatively short period of time during which the political struggles were at their most intense. The clearest difference between torturing at the Privy Council and at the High Council was that whereas the English tortured to make their suspect confess, the Swedes tortured only those already sentenced to death.³³	25
In Sweden, politically motivated torture emerged at times, even after the sixteenth century. King Charles IX has been shown to have tortured the Catholic proponents of his arch-foe, King Sigismund of Poland, and in some other cases either the king or the High Court of Svea (the first high court in the country, founded in 1614) authorized judicial torture. In addition to treason, some of these cases dealt with infanticide, a crime notoriously difficult to prove. These cases, too, remain isolated and by no means constitute a rule.³⁴	26
Of course there still remains the possibility that prisoners could have been systematically but clandestinely tortured in Swedish criminal trials. This, however, is not plausible. The courts would have had no reason to hide judicial torture, not at least before the torture prohibition was formulated clearly in the latter part of the seventeenth century. Nevertheless, the Swedes seem to have been at least curious about torture at the dawn of the early modern period, and this evident interest was reflected in the nascent legal literature as well. Sweden's most significant Lutheran reformer, Olaus Petri, discusses this touchy subject in his renowned Rules for Judges from the 1530s. Rule 31, for instance, states: " ... 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." Rule 38 continues: 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, the 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 the 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 ... ³⁵ Limiting torture to serious crimes and cases where some evidence already exists against the suspect clearly link Olaus's views on the ius commune torture doctrine.³⁶ However, the ius commune rules are given in a rudimentary, simplified form. The body of medieval procedural literature, with which Olaus may well have acquainted himself while studying theology at Jena, had no way of being transplanted as such in contemporary Sweden, which had very few university-trained legal professionals.³⁷	27
Ordinary and political criminal suspects, therefore, were at least sometimes tortured in sixteenth and even seventeenth-century Sweden, and Olaus Petri was accommodating the European ius commune doctrine of judicial torture to Swedish circumstances. But from this it does not follow that the practice was considered legal by what little legal community there was in Sweden at that time. The Swedish legal literature was actually not even born before the seventeenth century.³⁸ The legal opinion concerning judicial torture, if any one opinion existed, must have been in a constant state of flux in the sixteenth century. That this was still the case in the early seventeenth century is shown below.	28
I would thus disagree with Schmoeckel, who suggests that there was little difference between "[actual] judicial torture and a court practise [de facto allowing judicial torture] that continued for hundreds of years and that was tolerated by the state."³⁹ First, the legal development in Schmoeckel's account seems too static. Second, conscious toleration by the state would have required a stronger state than Sweden was in the sixteenth or early seventeenth century. By contrast, the campaign against torture that started in the latter half of the seventeenth century and culminated in the torture prohibitions of 1734 and 1772 can be taken as a sign of increasing intolerance of torture and of a centralizing state capable of ridding the system of torture. I also disagree with Åstrand, who is not in the least concerned with early modern standards of legality, operating with modern torture definitions instead.⁴⁰	29
It makes a difference whether torture was large-scale, systematic, and based on legal literature and a common notion of legality, as it was in Germany, France, and the other major ius commune regions of Europe, or whether torture was illegal, unsystematic, and exceptional, as was the case of Sweden and England. It is probably best to conclude at this stage that ius commune judicial torture was beginning to be used to some extent in sixteenth-century Sweden. However, torture never had time to become frequent and systematic until the campaign against it began in the seventeenth century. Alternatives to torture became available in Sweden, and they helped to reject the tempting transplant that judicial torture was. In the seventeenth century, the incipient transplant of judicial torture was energetically rooted out.	30

The Late Seventeenth Century: Rooting Out the Transplant
In the beginning of the century, however, attempts at legalizing torture began. Although curiosity about torture had emerged in the sixteenth century, it had so far inspired no legislative efforts. In 1604, however, Charles IX proposed to the Diet that torture be legalized. As mentioned above, the king himself is also known to have used torture against the allies of his arch-rival, King Sigismund of Poland. Nils Chesnocopherus, a legal professional well versed in Roman law during his studies in Marburg, prepared the proposal for the Hofgerichtsordnung, which included torture among its measures against suspects. This is probably the first time that a clear ius commune torture vocabulary emerges in Sweden. If the ius commune torture law is seen only against the background of Olaus Petri's Rules for Judges, then Charles the IX's statutory proposal entails an outright reception of the European learned law of torture. The idea was to give high courts (hovrätter) the right to torture, not lower courts.⁴¹ Although the lack of professional jurists in the lower courts is not openly discussed, the reformers certainly knew better than even thinking about vesting torturing rights on the lay lower courts. It must have appeared as self-evident that, should judicial torture be adopted, it would need to remain in the hands of the high courts. Article 8 of the statutory proposal reads: Because it often happens in many cases that full reason and proof is not available, with which the accused could be shown guilty, therefore law has allowed other means to find out the truth, namely with tortura and rack as they are usually called. No one shall be painfully questioned unless the court president and the assessors have condemned the accused to torture. And no-one shall be condemned to torture, unless there are certain coniecturas or guesses, certain circumstantis or circumstances, and sufficientia indicia, which means enough arguments and signs, that the accused cannot be freed.⁴² The proposal goes on to define the way torture is to be carried out. Suggestive questioning is forbidden. Torture can be applied three times, after which the suspect has to be set free. However, the proposal did not lead to legislation. The Council of the Realm commented on the "conjecturae" and "guesses," demanding that they be properly confirmed in each and every individual case.⁴³ The Noble Estate at the Diet was even more critical of the proposal, rejecting outright the idea of legalizing torture. According to the noble representatives at the Diet, "no-one should be condemned on the basis of a tortured confession, but according to the Swedish law, witnesses and full proof."⁴⁴ The memory of the harsh treatment the nobility had experienced during the reign of Eric XIV had obviously not been erased. Accordingly, torture was stricken out of the revised proposal, but Charles IX still included torture in his proposal for a reform Procedural Section 19 of the Law of the Realm (originally of 1442). In the latter proposal, the possibilities for torture were considerably narrower than in the first proposal. Nor did this proposal become law.⁴⁵	31
The fate of Charles IX's attempts to legalize judicial torture reveals the contemporary understanding of Swedish law. The king obviously thought that torture was illegal or at least poorly regulated in Sweden, otherwise he would not have attempted its legalization. Clearly, the nobility did not conceive torture as part of the lawful Swedish criminal procedure.	32
The emerging ideas of judicial torture touched the interests of moral theology as well.⁴⁶ Ecclesiastical interference is not surprising, considering the close alliance that the Crown and the Lutheran Church had entered into in post-Reformation Sweden.⁴⁷ In the most influential Swedish work in the field, Ethica Christiana (1617), Bishop Laurentius Paulinus Gothus did not rule out the possibility of using judicial torture in "highly important cases." In support of his view, the Bishop referred to a German handbook on governmental affairs: "although there are no outright examples [of torture] in the Scriptures or in the trials of God's people; and many weak-minded persons out of fear of pain often confess things they have not done. How it can be nevertheless proceeded with, when highly important cases are at stake, one may read in Guidonus de Susaria's tract, which Lauterbach sets at the end of his Regent's Book."⁴⁸	33
Therefore, if opinions still sharply diverged as to the need of judicial torture in the early 1600s, the trend in the latter part of the century turned toward prohibiting torture. The legal literature that emerged in the late seventeenth century shows this. Some decades after Charles IX's failed attempt to legalize judicial torture, Johan Stiernhöök claimed that it had never been accepted in Sweden, "not even in half-proven cases."⁴⁹ Johannes Loccenius, the German-born professor at Uppsala university, stated in his Synopsis iuris privati ad leges Svecanas accommodata (1673) that "in Swedish law there has never been any mention of truth or confession having been acquired by violent torture or questioning."⁵⁰ The leading contemporary Swedish criminal law treatise, Claudius Kloot's Synopsis rerum criminalium (1676), shared Stiernhöök's negative stance toward torture, although the text implies that it had not been completely unknown in Sweden, but had just fallen into desuetude.⁵¹ David Nehrman, the most influential of the eighteenth-century Swedish legal writers, shared the legal historical understanding of his seventeenth-century predecessors. Nehrman says that torture had "never been used ... in Sweden as in other countries," although he mentions that clear signs of torture were to be found in the Law of East Göta (of the early fourteenth century) and Olaus's Rule 38.⁵²	34
From the mid-seventeenth century onward, the attitude of judicial practice toward torture becomes critical as well. It was from the year 1614 onward that high courts (hovrätter) were created as appellate instances and as forum privilegiatum for nobility. An important function ascribed to the high courts was that of disciplining the lower courts. It was only since the founding of the high courts that the lower courts were forced to put their decisions in writing, so that they could be sent to the high court for a yearly inspection. In a high court case of 1652, the High Court of Stockholm states expressly that "torture is not, and for many reasons, in use here in our country." Logically, the torture prohibition was soon fixed in the statutory law. In 1683, King Charles XI issued a Royal Ordinance to regulate the legal procedure in courts martial. Article 23 of the Ordinance said that "Legal proof consists of the accused's own confession, when the accused confesses voluntarily and unforced in court ... but no one may be tortured or persecuted to confession, because torture is forbidden in the Kingdom of the Royal Majesty and in itself dangerous and uncertain."⁵³	35
The story of Swedish torture is not, however, straightforward and linear. The legal theory, legal practice, and legislation had, as shown above, overwhelmingly turned against judicial torture by the end of the seventeenth century. Not every actor on the legal scene, however, objected to it. Charles XI (1660–1697) and Charles XII (1697–1718) as autocratic rulers at the height of the royal power could have been expected to grant permission to torture. The king in his Council of the Realm (Riksrådet) had to give final approval to all death sentences, and high courts still occasionally turned to the king, asking for permission to torture. General Wallenstedt, a member of the council and a known proponent of torture, urged both Charles XI and Charles XII to grant torture warrants to high courts. Neither king, however, would consent to petitions to torture suspects in order to force them to confess. For instance, Charles XI replied to a petition from the Livonian High Court that "[it is] very problematic to let someone be tortured to speak the truth, for it is uncertain and the least truth is unravelled that way; in such unclear and suspicious cases when truth cannot be revealed by human understanding and with all the intelligence [that has been put into solving the case] it is better to place the suspect under Divine judgement [absolutio ab instantia] than to torture and convict some innocent people."⁵⁴ In judging another case Charles XII declared that "a confession given under torture is not solid grounds to convict anyone."⁵⁵ That the attitudes toward torture were still not quite settled, however, is shown by the fact that at least Charles XII was nevertheless willing to allow torture in cases in which the suspect had confessed but refused to reveal what he or she had done with the booty.⁵⁶	36
Therefore, although judicial torture had been repeatedly rejected since the early seventeenth century and despite the fact that the prevailing opinion had turned against judicial torture, the issue seems not to have been completely settled. In the 1680s preparations of a new Law of the Realm had started and a proposal of the Law Commission in 1723 had in fact included legal torture again. Provision 18:14 of the proposed Procedural Section of the Law stated that "without royal permission, no judge or governor shall have the power to torture anyone to confess their deed."⁵⁷ The idea was thus to make torture depend on the king's permission. Even though this formulation never made it into the statute text, another interesting wording did.	37
The Law of the Realm of 1734, first of all, expressly forbade torture.⁵⁸ Provision 17:36 of the Procedural Section stated that "A case confessed is as good as a witnessed one when the accused, of lawful age, is not insane and confesses voluntarily before the Court, and is not tortured, scared, or betrayed into making it. But when it comes to capital crimes, one cannot be convicted on a confession only, unless there are circumstances that support the confession."⁵⁹ The following paragraph (17:37) touched upon the same subject: "Should someone be proven guilty with clear evidence and full proof, even though he cannot be made to confess, then his denial does not matter. A Judge or a Governor may not let anyone be tortured into confessing; should such be done, let those responsible pay." Having first prohibited judicial torture, the latter part of the provision 17:37 stated: "As for serious crimes, the Judge may attempt with hard prison to reveal the truth when binding circumstances are at hand against the accused; however, let the Judge act carefully in this."⁶⁰	38
The statute thus forbade torture, but nevertheless allowed the judge to impose hard prison. Is this the same as torture? When approached in the light of the contemporary torture conception and the historical context of the statute text, the question must be answered negatively. Nehrman can be taken to represent the prevailing seventeenth-century interpretation of the passages of the Law of the Realm cited above.⁶¹ His description of hard prison helps to reveal what the contemporaries understood by torture and how they distinguished it from some other forms of treatment no longer accepted today. For Nehrman, hard prison was especially necessary when the suspected crime endangered state security. Nehrman seems thrilled about the effects of hard prison: " ... it has often had a good effect in that someone not willing to confess has been threatened with torture or has been kept in a fortress for some time ... The superiors have also often ordered that, when in spite of the scolding of the judge and priests have not been able to bring someone who, under binding circumstances suspected for a capital crime, to confess, then he ought be made to do so with the help of handcuffs and being hung on the wall, and if he continues obstinate, to receive a few lashes."	39
Thus for Nehrman hard prison could include handcuffs, hanging on the wall, and flogging. Is this not equal to torture? As we have seen, the distinction between hard prison and torture was not clear. As disgusting and torture-like as the questioning methods that he describes seem to a modern person, Nehrman did not consider them torture. The handcuffs, flogging, and being tied on the wall undoubtedly contributed to making the suspect's life miserable, yet for Nehrman there was a difference between these measures and the actual infliction of pain with the help of a torture device. Where exactly the line between hard prison and judicial torture was drawn is, however, not the point; the point is that the line was continuously drawn in legal practice. The distinction that the early modern Swedes made between hard prison and torture therefore has to be taken seriously.	40

Judicial Torture and Incarceration: Ius Commune
If Swedish hard prison was not torture by medieval and early modern standards, what was it? Because it belonged to the pre-trial stage, hard prison was not the same as the French plus amplement informé or the German Verdachtsstrafe or Lügenstrafe, which all required a court decision. Hard prison bears a resemblance to the English peine forte et dure, which involved weights laid on the prisoner in order to force him to enter a plea (the so-called "pressing"), and which was also a special kind of pre-trial detention. However, peine forte et dure was not intended to extract confessions, being used when the defendant refused to enter a plea. The English "hard prison" was also far harsher than the Swedish hard prison in that peine forte et dure often resulted in death.⁶²	41
Hard prison resembled torture in that it aimed at forcing the accused to confess and in that it could not be ordered without a considerable amount of evidence. Like torture, hard prison was only available to the judge in cases of serious crime. What must have been crucial for the contemporaries who saw a difference between the two modes of questioning the accused was that hard prison was more lenient than torture. It would be a serious anachronism to dismiss this distinction as mere hypocrisy.	42
From the twelfth to the seventeenth century, the old way of understanding torture was linked to the idea of torture's legal function. Torture was a judicial instrument, a legally regulated part of criminal procedure, and thus devoid of any moral value. Any harsh treatment even when helpful in extracting a confession from an accused was not torture in medieval and early modern legal thinking. What then was considered torture? A thirteenth-century legal writer described torture as "an inquiry after truth by means of torment," whereas a seventeenth-century author defined the concept as follows: "Torture is interrogation by torment of the body, concerning a crime known to have occurred, legitimately ordered by a judge for the purpose of eliciting the truth about the said crime."⁶³	43
Although the means of torture were thus largely left to judicial discretion, the practices in different parts of Europe had enough in common for judicial torture to be classified as a clearly distinct practice and different from other kinds of suffering inflicted on criminal suspects. It was the particular harshness of judicial torture that set it apart from other kinds of treatment that the suspect might encounter in the inquisitorial phase of the continental criminal procedure. Although instruments of torture varied and were not normally regulated by literature or statutes, some of the devices were widely known. The judge or bailiff administering the quaestio could usually conveniently operate the instruments, thus increasing or lowering the level of pain according to the needs of the inquisition. Judicial torture all over Europe utilized instruments that caused intense pain, such as the rack, hot metal, and thumbscrews.⁶⁴ Torture instruments were often designed to distend or compress the extremities of the human body, probably because this kind of torture was less likely to be fatal to the tortured person than torture directed to the trunk of the body.⁶⁵ This was different from the normal harshness involved in keeping a suspect in custody.	44
The ius commune authors were well aware of the harshness involved in normal incarceration, too. It is essential to point out that imprisonment, in the theory and practice of ius commune, was primarily a pre-trial measure, not an actual punishment. Its primary aim was to keep suspects in custody, not to press confessions. The most influential of the German criminal jurists, Benedict Carpzov, is the logical one to take a closer look at, since his books were widely read among the few Swedish legal professionals. As in the case of judicial torture, a certain amount of evidence was necessary before the suspect could be imprisoned: "The delinquent ought not to be imprisoned, unless there is circumstantial evidence of the crime he has committed, the sufficiency of which the judge shall estimate." The amount of evidence that was needed for imprisonment depended on the evaluation of the judge, although in principle less evidence was required than for torture.⁶⁶	45
Repeating an old ius commune phrase, Carpzov warns that in practice incarceration was "a species of torture and comparable to death because of the filth, hunger, coldness, and darkness" involved, even though incarceration existed for the "keeping of people, not for punishment or torture" (ad continendos homines, non puniendos aut excruciandos).⁶⁷ Therefore, he advises the magistrates to act "cautiously and prudently" when sending suspects to prison. Although prisons were, by nature, disagreeable places, they still had to be "tolerable," not "subterranean, horrible and filthy."⁶⁸ Even so, prison circumstances could vary from the "harsher" to "more tolerable" according to what the judge deemed appropriate (qualitas custodiae in judicis arbitrio est constituta). Chains, for instance, had to be used according to the "quality of the crime and the prisoner."⁶⁹ Prison conditions were also highly dependant on the prisoner's social status. Noblemen, doctors, clerics and other "dignified" people were to receive better treatment than prisoners of lower social standing, because noblemen and their counterparts were less likely to escape.⁷⁰ Many different kinds of incarceration in fact existed in early modern Europe.	46
Although Carpzov likens prison to torture, this is obviously not more than a metaphor or a ius commune idiom. The actual judicial torture is treated (as was habitual in contemporary penal law treatises) elsewhere in the book.	47

The Changing Conception of Judicial Torture and Hard Prison in Sweden
The continental theories did not leave the Swedish legal literature untouched. Nehrman closely follows ius commune when incarceration is concerned. In order for the suspect to be incarcerated, the crime had to serious, and there had to be evidence against the suspect. Suspects of higher social standing received preferential treatment. Inmates were to be kept either in chains or loose, depending on the quality of the crime and the suspect's likelihood of escaping. The idea of incarceration was to prevent the suspect from escaping, "not to torture him."⁷¹ Pre-trial incarceration, both at Swedish law and ius commune, thus differed from the Swedish hard prison in that regular pre-trial incarceration was not a method of pressing the suspect to confess. Hard prison was primarily designed for obtaining confessions, although it was not categorized as judicial torture. Hence, hard prison was something of an anomaly.	48
Matthias Calonius, traditionally considered the father of Finnish legal science, probably would not have accepted the characterization of hard prison as an anomalous insitution.⁷² In 1790, Calonius divided torture into proper and improper (tortura proprie dicta, tortura impropria). Proper torture involved "more exquisite" physical coercion than improper torture, which was "more tolerable" but could last longer. According to Calonius, while Swedish law had not had recourse to torture properly speaking, improper torture had been used with royal permission in cases involving public security. Sending the obstinate suspect to forced labor for an indefinite period of time in order to make him confess (this was absolutio ab instantia combined with confessional imprisonment—a rough equivalent of the German Lügenstrafe) was the typical case of improper torture for Calonius. Speaking of proper torture, Calonius concludes that "we [Swedes] must congratulate ourselves for having been born and raised in a society the laws of which, according to what we can read ... have never admitted torture in court."⁷³ Calonius's definition of certain practices as improper torture, however, reflects the changed discourse in which not only the statutory torture of the old ius commune could be labeled torture. Whether hard prison also fell into that category remains unclear, but for certain it was not proper torture for Calonius. Hard prison was just "a faint shadow of torture" (exigua torturae umbra), even though in practice judges had used hard prison as an opportunity to send suspects to "inhumane" prison conditions.⁷⁴ Calonius's typical ius commune vocabulary ("obscure, filthy, and subterranean prisons") conveys a message that he thought of hard prison, when lawfully used, as just another variant of incarceration. It was another thing that the judiciary unfortunately had not always treated it as such, thus overstepping its lawful powers.	49
If the prohibition of torture did not occur overnight, neither can the development toward including hard prison within the concept of judicial torture be regarded as a simple and straightforward story. The Swedish legal community's stance toward hard prison had been changing long before Calonius, a political conservative, and even before Nehrman.⁷⁵ The first criticism of what today seems an artificial distinction between torture and hard prison emerged as soon as the law-drafters revealed their plan to include hard prison in the Law of the Realm. The critic was Peter Abrahamsson, a well-known judge and a member of the commission in charge of drafting the Law of the Realm. Abrahamsson, who commented on the Law Commission's Proposal for the Law of the Realm in front of the estates in 1733, thought that hard prison was also torture and should thus not be allowed: [The statutory proposal] forbids that anyone may be tortured into confession, and indeed it has been forbidden for a long time by several decrees, and yet it would now be allowed in cases of serious crime to try to get the truth into the light of day. It is also torture, and even if it sometimes may have happened so that the judge has brought the truth into daylight, it has also happened that the judge has not gotten any more information with the help of such methods of inquiry. It is therefore reasonable that all torture including hard prison be forbidden, for it is almost better to let a criminal go free than it is to torture someone who is innocent.⁷⁶ In spite of Abrahamsson's criticism, the distinction was made between proper torture and hard prison in the Law of 1734, and it survived for practically the whole eighteenth century. As the example of Calonius's text shows, the distinction to some extent also survived Gustavus III's Letter⁷⁷ to destroy all instruments of torture in 1772, which the king issued only a week after taking power in a coup d'état.	50

Toward Modernity
The difference between judicial torture and hard prison began to seem increasingly artificial in the eyes of the eighteenth-century Swedes, and both ways of handling criminal suspects more and more repulsive. As Erik Anners has observed and against what has sometimes been falsely claimed, Gustavus's Letter was not originally intended to abolish torture. There was no need for abolition, because the Law of 1734 had already done so.⁷⁸ Gustavus's Letter was, however, necessary for two reasons. First of all, it is apparent that in practice criminal suspects were still tortured in some courts, although hardly routinely and certainly not lawfully. Second, the abolition has to be seen in the light of Gustavus's overall policy, since for the sake of his image as an "enlightened despot," it was important to forcefully reject torture, one of the symbols of the ancien régime internationally.⁷⁹	51
However, the order to demolish instruments of torture was in practice extended to cover hard prison as well when the king responded to a référé législatif posed to him by the Svea High Court in 1774.⁸⁰ The High Court's letter was discussed by the Justice Revision and was also remitted to the Law Commission to issue its statement.⁸¹ The discussions concerning the royal letter of 1772 show that it was not clear what the limits of torture were. Most of the participants thought in the traditional way that hard prison was not torture. According to the Svea High Court, the letter only dealt "with the kind of prison facilities which had no basis in the law, but that could cause inhumane suffering for the accused delinquents."⁸² The Law Commission was also of the opinion that proper torture and hard prison were two different things: torture forced the accused to confess to end pain, whereas hard prison aimed at bringing the accused to feel remorse and, as a result of that, to confess.⁸³ It seems that the king's personal conviction was instrumental in finally including hard prison among the forbidden practices; in other words, in taking one of the decisive steps toward abolishing the principal difference between proper torture and hard prison.⁸⁴	52
The differences between these two ways of looking at hard prison are crucial to the point of this article. The prevailing and the more traditional way to understand hard prison, at least in the early eighteenth century, was to regard it as a lesser evil not belonging to the category of torture. The modern way, represented first by Peter Abrahamsson and some decades later, after considerable wavering, Gustavus III, saw no essential difference between hard prison and actual torture.	53
Why was the concept of torture, in the traditional thinking, restricted only to certain gruesome legal questioning practices while at the same time permitting other forms of harsh treatment defined as hard prison? This is a question only a modern person would ask. That the medieval and early modern world was already full of suffering for the common man hardly needs elaborating: death, disease, hunger, and violence came in quantities difficult to imagine. The degree of pain that people ordinarily encountered in their everyday lives was much higher than modern man would find tolerable, and this pain was probably not registered the same way in the middle or the early modern ages as it would today.⁸⁵ The individual body was not, in the medieval or early modern world, protected against harsh or inhumane treatment as such. As James Whitman has recently shown in another context, the idea of respectful treatment of the prisoner only arises in Europe after the French Revolution.⁸⁶	54
Somewhere on the way toward modernity, the distinction between torture strictly speaking and other forms of treating the suspect inhumanely gradually disappeared and a modern notion of torture surfaced, causing critics like Peter Abrahamsson to stand up and speak. As Edward Peters sharply remarks, "from the seventeenth century on, the purely legal definition of torture was slowly displaced by a moral definition; from the nineteenth century, the moral definition of torture has been supplanted largely by a sentimental definition, until 'torture' may finally mean whatever one wishes it to mean, a moral-sentimental term designating the infliction of suffering, however defined, upon anyone for any purpose—or for no purpose."⁸⁷	55
The concept of torture did not, however, turn to a purely moral concept. Because torture was being forbidden all over Europe from the eighteenth century onward, a legal definition was (and still is) necessary to determine what practices were not allowed. It is not particularly surprising that the concept of torture broadened more or less simultaneously with the campaign against inquisitorial criminal procedure, as the opponents of the ancien régime criminal procedure also cast a critical eye on torture. The change from the old concept of torture to the new one was, as I hope I have shown, a gradual one. The legal definition of torture came to include a larger spectrum of harsh treatment than before, as the Swedish experience shows. In Sweden it took almost a hundred years, if we take Judge Abrahamsson in the 1730s as the first representative of the new way of defining torture and Matthias Calonius as the last of the old school in the last years of the eighteenth century.	56
Because of the paucity of Swedish literature on the subject, the details of the adoption of the modern vocabulary of torture in Sweden are difficult to trace. It may, however, be safely assumed that the old, narrow concept of torture had lost favor at least by 1832, when a committee issued its Proposal for a General Criminal Law (Förslag till Allmän Criminallag).⁸⁸ In 1832, hard prison still remained on the statute books, thus forcing the committee to take a stand on the issue. The committee wanted to rid the Swedish criminal procedure of the remnant, motivating its opinion, paradoxically, much the same way ius commune writers had always done: "The purpose of an arrest is only to retain the arrested person in custody. He cannot lawfully be subjected to any harsher treatment than is necessary to achieve this end. From this it follows that any distinction between a harder and a more lenient prison lacks justification. Every arrest must be as harsh as security requires, but not harsher."⁸⁹	57
The larger context of our story is obvious enough. The distinction between "proper torture" and "improper torture," and between judicial torture and hard prison, vanished together with the system of criminal law of which proper torture had formed part and parcel, the ius commune criminal law. The details of this well-recorded history need not be repeated. This is the story of the demise of the statutory theory of proof and its replacement by free evaluation of evidence, the story of the crumbling of the inquisitorial procedure, of the victory of the legality principle over the medieval principle of "let no crime be left unpunished" (ne crimina remaneant impunita). It is also the story of the evolution of human rights in the writings of the Enlightenment philosophies and their subsequent inscription in the documents of the American and French revolutions. It is, of course, precisely at this stage that the punishing state, according to Michel Foucault, starts to shift its attention from the body of the criminal to his mind, and it is in the late eighteenth century that Pieter Spierenburg dates the "increase in sensibilities" that he claims eventually led to the abolition of torture and cruel punishments.⁹⁰	58

Why Judicial Torture Never Really Made It in Sweden
But why did judicial torture have such difficulties in Sweden? Let us repeat the main points of the story. To the extent that torture was first adopted in the fifteenth and sixteenth centuries in Sweden, it was adopted partially and without the accompanying legal theory. As we have seen, in the sixteenth century torture was regularly used in some courts. Political and witchcraft cases established another major area of torture in early modern Sweden. However, taking Sweden as a whole, we have a basis to claim that torture was still exceptional. There is no evidence in the available empirical surveys that it would have been used regularly in ordinary lower courts. The attitude toward torture remained ambivalent at least until the mid-seventeenth century and in some circles even beyond that. After an initial reception of legal torture, the overall attitude toward torture turned clearly negative when the seventeenth century advanced to its later half. The propositions aiming at legalizing torture crumbled. Legal treatise writers interpreted Swedish law as forbidding it, and some denied that it had ever existed in Sweden. It seems that torture disappears from court files. Hard prison, originally a product of legal practice, emerges in the Law of the Realm of 1734, perhaps to a certain extent as a functional substitute to torture and probably as a result of practical pressures. Hard prison was, however, by no means the same as judicial torture. What became of torture, properly speaking, in Sweden?	59
International comparison shows that the disappearance of torture (or of what little torture had developed) in late seventeenth-century Sweden is not exceptional. It had been on the decline in major European countries since the sixteenth and seventeenth centuries. Extraordinary punishments, the principal reason that Langbein gives for the disappearance of judicial torture, became a success in early modern Sweden as well. Medieval Swedish laws relied on absolute punishments, which were then mitigated in the local lower courts.⁹¹ Once Swedish-Finnish lower courts fell under the supervision of the high courts during the first half of the seventeenth century, however, they were rapidly forced to observe statutory law. The high courts reserved to themselves the right to depart from the statutory sentence, and the power of mitigation was expressly conferred on them in 1641. Mitigation was, however, only allowed in cases where a precedent was available—in other words, when the king had previously pardoned in a similar case. According to the law, when "the circumstances [were] different, then the case [had to be] referred to His Royal Majesty."⁹² In practice, the high courts routinely commuted lower court death sentences to poena extraordinaria (transportation, fustigation, and fines).⁹³	60
There was an apparent need for mitigating sentences, because the statutory punishment system had been rendered drastically harsher since the mid-sixteenth century and the reign of Gustavus I Vasa. The extraordinary punishments thus did not spread, in Sweden or elsewhere, only because of the difficulties of proof involved in the prevailing statutory theory of proof. Lacking proof was just one of the situations in which medieval and early modern courts had recourse to extraordinary punishment. Nevertheless, its increased use created flexibility in sentencing, which allowed European courts to largely abolish torture. In Sweden, the spread of the extraordinary punishment had a similar effect, with the difference that systematic legal torture had actually never even managed to take firm root there in the first place.	61
As was mentioned above, other ways of tackling the problem of incomplete proof developed as well. In Germany, absolutio ab instantia (Instanzentbindung) and in France plus amplement informé and mis hors de cour came to be employed as important intermediate decision types between complete acquittal and conviction. In fact, by the sixteenth century a whole range of decision types had emerged in both Germany and France. A different degree of proof corresponded to each type, and the requirement of full proof was reserved mainly for capital punishment. Although declining in use, judicial torture remained part of the system until the eighteenth century, and the statutory theory of proof was still retained in principle.⁹⁴	62
The system of evidence created for serious crimes in clause 17 of the Procedural Section of the Law of the Realm is built on the same idea of matching the amount of evidence with a legal consequence as in the German and French systems: the more evidence, the harsher the consequence. As far as serious crimes were concerned, the evidentiary system of 1734 recognized four basic ways to end a criminal process: a conviction, absolutio ab instantia, a conditional acquittal, and complete acquittal. Absolutio ab instantia could appear by itself, or together with confessional imprisonment, which combination was in fact a fifth alternative. A different degree of proof corresponded to each of these decision categories. The main difference between the continental and Swedish systems was that the Swedish law of evidence did not include torture.⁹⁵	63
By the time the statutory theory spread in seventeenth-century Sweden, alternatives to torture had been developed to escape the excessive rigidities of the legal theory of proof. As we have seen, these other methods of ensuring criminal responsibility in clear cases in which full proof was nevertheless lacking were introduced into Swedish criminal practice together and as an integral part of the statutory theory of proof. The reception of the legal theory of proof in Sweden followed the European pattern, although at an accelerated pace.	64
Extraordinary punishment and other ways of tackling with incomplete proof were, as far as I know, never expressly discussed as reasons for not accepting judicial torture. The widespread use of extraordinary punishment was, instead, part of the self-evident legal landscape in which the early modern Swedish jurists worked, just as the growth of extraordinary punishment had provided the framework in which the use of torture had declined in Continental Europe. This was also the case with another major explanatory factor behind the Swedish reluctance toward judicial torture, the lay domination at the lower courts. This reason links Sweden with England. Langbein explains the lack of systematic judicial torture in England by the non-bureaucratic nature of the country's criminal system. Laymen could not impose judicial torture.⁹⁶ The Swedish experience resembles the English development. In Sweden, the local court members, both the nämndemän and often the judges, were untrained in law.⁹⁷ In continental Europe, torture and the legal theory of proof were adopted together with professionalization of the judiciary. The Swedish judiciary took much longer to professionalize, and the judicial administration in both Finland and Sweden has remained heavily reliant on the lay element even into the present. The procedure in the hundred and town courts remained public and verbal, although written court records were kept and, from 1615 onward, sent to a high court for inspection.	65
It is worth pointing out that, unlike the Stockholm court, compurgators or oath-helpers in many more peripheral areas of the Swedish realm continued in use until their abolition by law in 1695.⁹⁸ Together with oaths they formed the ancient backbone of the system, on top of which newer layers of more "rational" fact-finding gradually developed. An archaic mode of procedure, criminal trial by oaths and compurgators was essentially accusatorial. It was heavily reliant on the activity of the plaintiff and far different from the inquisitorial trials of France, Germany, or Spain, in which judicial torture had been typically combined with inquisitorial procedures, driving laymen and their archaic modes of truth-finding out of the judicial system. It is true that, as the seventeenth century progressed, oaths and compurgators were used less and less in Sweden, as "rational" means of evidence (such as confession and witnesses) gained ground. Although inquisitorial features were added to the available choice of measures, the criminal procedure nevertheless remained essentially accusatorial.	66
If judicial torture mixed poorly with oaths and compurgators, and with the accusatorial nature of the Swedish lay-dominated criminal trials, it combined just as poorly with the public and oral nature of the court proceedings. It is difficult to see how the local jurymen could have tortured their neighbors. If they had nevertheless been willing to act as torturers, they certainly were not permitted to. Had local courts been given the right to torture, safeguards against misuses of such a power would have been needed. Now, the only available safeguards available were doctrinal, and mastering these would have required a judicial system based on legal expertise. There was no way the modernizing Swedish state, in the process of constructing a centralized, controllable judicial system complete with high courts supervising the lower courts, was going to confer a power to torture their peers on the peasant court members. It is therefore not particularly surprising that the trend was clearly the reverse. Soon after the system of high courts had begun to take shape, lower courts were no longer even allowed to commute death sentences to poena extraordinaria, having instead to stick strictly to the letter of the law. As mentioned above, by 1641 the use of extraordinary punishments was thus retained by high courts only.	67
The Swedish development follows the European pattern, both the English as well as the continental one. The confluence of lay domination and the spread of extraordinary punishments made judicial torture both unthinkable and unnecessary in Sweden. Yet the European trends alone do not explain why the initially somewhat positive attitude toward torture in the sixteenth century changes into a clearly negative stance during the seventeenth. I believe that the change in the general attitude is intimately linked to what has been called the "judicial revolution."⁹⁹ The seventeenth century has often been regarded as the most important century in the history of the Swedish judiciary. It was then that high courts (hovrätter) were created as appellate instances and as forum privilegiatum for nobility.¹⁰⁰ When the high courts were put in charge of developing and centralizing Swedish law, they quite obviously thought it both necessary and possible to root out the beginnings of judicial torture. The nobility's somber experience of torture at political trials of the late sixteenth century was still fresh in the memory of the noble estate, now in charge of running the new high courts.¹⁰¹ For the same reason that large-scale judicial torture had been unthinkable in England, torture was not entrusted to Swedish lower courts. The high courts themselves had chosen another path in dealing with insufficient evidence, the path of extraordinary punishments that had been taking shape in European law for some time already. Alternatives for the death sentence were now available, and thus pressures to extract confessions using torture diminished considerably. Hard prison was then included in the Law of the Realm of 1734 as a moderate compromise, the administration of which was in the hands of the presiding judge, by then usually a legal professional, not the lay members of the court.	68
The philosophical critique of judicial torture still deserves some attention. According to Mathias Schmoeckel, the emphasis of writers such as Juan Luis Vives, Michel de Montaigne, and Pierre Bayle on the individual's worth instead of Staatsraison significantly contributed to Fredrick the Great's abolition of judicial torture in Prussia in 1740. The new epistemological ideas of John Locke and his followers practically demolished the idea of objective knowledge on which the statutory theory of proof, and judicial torture with it, rested. Instead of certainties and objective perceptions, knowledge was now based on probabilities. The abyss between the European law of proof and the modern epistemological notions grew too wide, and eventually it was the law that had to concede.¹⁰²	69
Students of Swedish legal history have made little of philosophical influences, and rightly so. Philosophical influences can hardly explain the seventeenth-century developments. Long into the second half of the century, Aristotelianism ruled in the Swedish universities, outside which philosophy was not practiced. A telling fact is that a leading work in Swedish intellectual history does not even mention Vives or Montaigne.¹⁰³ Only a few read writers such as Locke and Bayle in early eighteenth-century Sweden, and Enlightenment thinking had little effect on the Swedish intellectual climate before the reign of Charles III (1771–1792).¹⁰⁴ Because the decidedly negative attitude toward judicial torture dates from the late seventeenth century, it is difficult to see how philosophical influences could have significantly influenced the Swedish resistance to judicial torture. As far Sweden is concerned, the fairy tale must thus remain just that.	70
Philosophical changes thus ran parallel to the changed sensibility, which had increasing problems of coping with hard prison. Recently, increased sensibilities and their relation to the development of criminal punishments have been a popular theme in the history of crime. Eva Österberg first introduced this into Scandinavian discussion in the 1980s, and since then many Finnish and Swedish scholars have both used and criticized the civilization theories of Norbert Elias and Pieter Spierenburg in their works on Swedish criminal history.¹⁰⁵ Despite differences in opinion as to the relevance of such theories, most scholars agree that the growth of the modern Swedish state in the sixteenth and seventeenth centuries contributed to the diminishing figures for violent crime in that period.¹⁰⁶ Whether and to what extent the pacifying tendency actually increased sensitivity toward violence is a difficult question and cannot be dealt with here. If one assumes that sensibilities and values change in the first place, as most will admit, it is probably safe to assume that at least by the late eighteenth century a large number of Swedes, at least members of the elite, would have found excessive violence and painful punishment increasingly repulsive.¹⁰⁷ The Swedish punishment system had never been particularly harsh in comparison to other European countries and, as a result of the frequent use of poena extraordinaria, executions had become rare in the few decades following the Law of the Realm of 1734.¹⁰⁸ In addition to his other reforms, Gustavus III took steps toward abolishing capital punishment, although the practical influence of these reforms is questionable. Anners, however, dates one of the decisive breakthroughs in humanist attitudes to 1786, when Gustavus's proposal for a new infanticide law was discussed in the Diet. Against all this background, his decision to include hard prison in his torture prohibition of 1772 as well as the final abolition of hard prison in 1826 become understandable.¹⁰⁹ At least the final abolition fell onto fertile ground.	71
As torture is concerned, we may thus indeed speak of a Swedish Sonderweg. During the course of the enlightened eighteenth century, the distinction between torture proper and hard prison, however, became to seem more and more artificial, until the distinction completely disappeared in the nineteenth century. Both in Sweden as in Europe in general, all inhuman treatment of prisoners was now considered both immoral and against the law. The Swedish Sonderweg had come to its end.	72
Why was judicial torture, as understood in ius commune, forbidden in seventeenth-century Sweden? Whether or not to allow torture was not, as we have seen, only a theoretical but also a burning practical question of criminal procedure. Although torture was vigorously making its way into Swedish law in the late middle ages and the early modern age, the torture rules stumbled on powerful obstacles in Sweden. Full-scale reception would have required a body of learned legal professionals, which did not exist in early modern Sweden. A lay-dominated judiciary could not be entrusted with an instrument potentially as dangerous as torture was, because laymen were beyond the control of the learned rules of law. By the seventeenth century, however, the development of new forms of extraordinary punishment and other flexible elements of the statutory theory of proof lessened whatever pressure there may have been to obtain confession with the help of torture. This suited the Swedish nobility, which had bitter experiences of torture during the late sixteenth-century political trials.	73

Lay Judges, Extraordinary Punishment, and the Rejection of Judicial Torture: England, Sweden, and the Continent
Judicial torture ran into similar obstacles in both England and Sweden. The bulwark of the court system in both countries was entrusted to laymen, who had no way of acquainting themselves with the weighty procedural treatises that European ius commune writers had produced on judicial torture since the thirteenth century. Since it was that literature that contained all the essential safeguards without which judicial torture could not be entertained at lower courts, it is no wonder that the high courts in Sweden (as soon as they were founded), and the legal literature in both England and Swedish, condemned the torture of suspects at ordinary courts of law.	74
Both England and Sweden nevertheless experimented with torture, albeit under well-controlled circumstances. In both countries, important deviations from the ordinary course of justice occurred in the late sixteenth or seventeenth centuries, not incidentally the period in which the political elites of both countries felt threatened by what they considered criminality of the most dangerous kind. Hence both the Tudors in England and the Vasa in Sweden were prepared to use the harshest of means to rid their countries of political and religious offenders. At least for brief periods of time, these measures came to include even judicial torture.	75
This study thus supports John Langbein's point regarding England, which claims that the strong lay element in the English judiciary prevented entrusting judicial torture to lower courts. This was precisely the case in Sweden as well. Whenever judicial torture was exceptionally permitted, torture permissions were granted by high courts, special commissions, or the political authorities. This article also lends comparative support to another argument of Langbein's, according to which the spread of extraordinary punishments made judicial torture unnecessary. When the European ius commune and its criminal procedure first appeared in Swedish legal practice at the threshold of the modern age, they were soon accompanied by the extraordinary punishments, already popular in Continental Europe. The idea of matching the lack of evidence to punishments less than death was slowly but surely rendering judicial torture useless all over Europe, including Sweden. Judicial torture, therefore, got off to a poor start in Sweden, and its future in the following centuries could not be any brighter as extraordinary punishments became a standard instrument in Swedish courts. The Swedish legal community thus ended up rejecting judicial torture, but as we have seen, the rejection was far from unanimous and the consensus took a long time to achieve. Like other major lines of historical development, the trend toward prohibiting torture in courts was not linear in its details but consisted of steps both back and forth. Although the predominant opinion turned toward torture in the latter half of the seventeenth century, judicial torture had its proponents long into the eighteenth. It was only in late eighteenth century that the enlightened philosophical currents and public sensitivities had reached the point in which any public endorsement of torture had finally become impossible.	76
Heikki Pihlajamäki is academy research fellow and senior lecturer in legal history in the Faculty of Law at the University of Helsinki, Finland <heikki.pihlajamaki@helsinki.fi>. A previous draft of this article was presented at the network meeting of Nordic legal historians (REUNA) in Lund, Sweden, September 2004. The author thanks the participants for advice, in particular António Hespanha, Pia Letto-Vanamo, Jørn Øyrehagen Sunde, Kaius Tuori, and James Whitman. Special thanks go to the editor and the anonymous reviewers of the Law and History Review for their immensely helpful comments. Unless otherwise indicated, all translations are by the author. Notes ^1. John H. Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (Chicago: University of Chicago Press, 1977). ^2. Ibid., 10–12, 48, 64–67. ^3. Mathias Schmoeckel, Humanität und Staatsraison: Die Abschaffung der Folter in Europa und die Entwicklung des gemeinen Strafprozeβ- und Beweisrechts seit dem hohen Mittelalter (Köln: Böhlau, 2000), 359, 536, 591. ^4. Langbein, Torture, 137–38. Schmoeckel does not regard England as fundamentally different from the continent. See Schmoeckel, Humanität, 54. For views supporting Langbein's description of England as a special case, see Edward Peters, Torture (New York and Oxford: Basil Blackwell, 1985); and Elizabeth Hanson, "Torture and Truth in Renaissance England," Representations 34 (1991): 53–85. Both Peters and Hanson regard English torture as exceptional and, unlike its continental variant, unsystematic. See also James Heath, Torture and English Law: An Administrative and Legal History from the Plantagenets to the Stuarts (Westport, Conn.: Greenwood Press, 1982), who carefully lists torture cases but refrains from making comparisons with the continental situation. Heath's study nevertheless supports Langbein's argument in general. ^5. See, for instance, William Holdsworth, A History of English Law (London: Methuen, 1956), 488. ^6. Langbein, Torture, 137–38. ^7. Cited in Hanson, "Torture and Truth," 57. ^8. The warrants are listed in Langbein, Torture, 94–128, and reproduced in Heath, Torture and English Law, 201–39. ^9. Hanson, "Torture and Truth." ^10. Langbein, Torture, 138–39. ^11. Johan Stiernhöök, De iure sveonum et gothorum vetusto (orig. 1674; repr. Stockholm: Institutet för rättshistorisk forskning grundat av Gustav och Carin Olin, 1962). J. E. Almquist, "Johan Stiernhöök, vår förste rätthistoriker," in Rättshistoriska studier: Band 2 (Lund: Institutet för rättshistorisk forskning grundat av Gustav och Carin Olin, 1957), 162–214. Almquist has shown that Stiernhöök began his work on the older Swedish law when a professor in Turku in the 1640s, although the final version of De iure was not published until 1674. See also Göran Inger, "Såsom i en spegel: Några reflektioner kring Johan Stiernhöök's arbete De iure sveonum et gothorum vetusto (Om svears och götars forna rätt)," in Johan Olofsson Stiernhöök: Biografi och studier 1596–1996, ed. Kjell Å. Modéer (Lund: Institutet för rättshistorisk forskning grundat av Gustav och Carin Olin, 1996), 45–55. ^12. Schmoeckel, Humanität, 57–58. In order to be fair to Schmoeckel's monumental work and to put the criticism presented here into a perspective, it should be noted that the part concerning Sweden is only two pages long, as against the nearly six hundred pages of the entire book. ^13. Björn Åstrand, Tortyr och pinligt förhör: Våld och tvång i äldre svensk rätt (Umeå: Umeå universitet, 2000). ^14. Hugo Gemmel, Om ställande under framtiden för brott (Norrköping: Johan Jönson, 1911), 30. ^15. Göran Inger, Institutet "insättande på bekännelse" enligt i svensk processrättshistoria (Lund: Institutet för rättshistorisk forskning grundat av Gustav och Carin Olin, 1976), 31. On torture in Sweden, see also Erik Anners, Humanitet och rationalism: Studier i upplysningstidens strafflagsreformer—särskilt med hänsyn till Gustav III:s reformlagstiftning (Lund: Institutet för rättshistorisk forskning grundat av Gustav och Carin Olin, 1965), 186–206; Bengt Ankarloo, Trolldomsprocesserna i Sverige (Lund: Institutet för rättshistorisk forskning grundat av Gustav och Carin Olin, 1971); and Heikki Pihlajamäki, "'Swimming the Witch, Pricking for the Devil's Mark': Ordeals in the Early Modern Witchcraft Trials," Journal of Legal History 21.2 (2000): 35–58. ^16. See Göran Inger, Erkännandet i svensk processrättshistoria, vol. 2, 1614–1948 (Lund: Institutet för rättshistorisk forskning grundat av Gustav och Carin Olin, 1994), 103. ^17. Henrik Munktell, "Tortyren i svensk rättshistoria: Ett bidrag till straffrprocessrättens historia I–II," Lychnos 1939: 102–35 (I) and 1940: 132–65 (II). Ankarloo shares Munktell's opinion. See Ankarloo, Trolldomsprocesserna, 257. ^18. In 1974, Langbein raised serious doubts as to whether the inquisitional features of the medieval German procedure could have developed without the influence of ecclesiastical canon law. See John Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, Mass.: Harvard University Press, 1974), 154–55. Trusen's article in 1984 proved Langbein's doubts correct. See Winfried Trusen, "Strafprozess und Rezeption: Zu den Entwicklungen im Spätmittelalter und der Grundlagen der Carolina," Strafrecht Strafprozeβrecht und Rezeption: Grundlagen, Entwicklung und Wirkung der Constitutio Criminalis Carolina, ed. Peter Landau and Friedrich Christian Schroeder (Frankfurt am Main: Vittorio Klostermann, 1984), 29–118. ^19. Trusen, "Strafprozess und Rezeption," 44. ^20. Åstrand, Tortyr, 90. ^21. Of course, it may well be asked how systematic a practice the twenty-four torture cases in the 140 years (1474–1614) of Åstrand's study represent. Inger has previously researched the same material and a large amount of other lower court material, both printed and unprinted. See Göran Inger, Das Geständnis in der schwedischen Prozessrechtsgeschichte, vol. 1, Bis zur Gründung des Svea Hofgerichts 1614 (Lund: Institutet för rättshistorisk forskning grundat av Gustav och Carin Olin, 1976), 192–206. ^22. The archival material covered all the criminal cases (a total of approximately 2000) in the sample years proceeding from the Lower Court Districts of Masku (the Lower Court at Nousiainen, Masku and Lemu; and the Lower Courts at Pöytyä and Mynämäki; year 1640; archive reference: Masku I KO a 2 1637–1643, at the National Archives, Helsinki, Finland) and Pien-Savo (The Lower Courts at Leppävirta and Puumala; years 1663–1665, 1673–1675, 1683–1685, 1693–1695, 1703–1705, 1723–1725, and 1744; archive reference: Pien-Savo KO a 1–5 1663–1696, a 14–15 1703–1705, a 23–25 1723–1725, a 33–35 1733–1735, and a 42 1734, at the National Archives, Helsinki, Finland). Masku is close to Turku, at that time the most important of Finnish towns, and Pien-Savo was a court district in Eastern Finland. Unlike, for instance, Sweden's possessions in Livonia or Germany, Finland was an integral part of Sweden. If compared to other Swedish regions, there is thus no particular reason to doubt that Masku and Pien-Savo are representative. ^23. See Inger, Erkännandet, 103–6. See also Ankarloo, Trolldomsprocesserna; and Rudolf Thunander's fine study on the Göta High Court criminal law practice, which confirms Inger's findings for that particular high court. Rudolf Thunander, Hovrätt i funktion: Göta hovrätt och brottmålen 1635–1699 (Lund: Institutet för rättshistorisk forskning grundat av Gustav och Carin Olin, 1993). One may in fact pick up practically any collection of printed early modern case material from Sweden and search in vain for signs of systematic judicial torture. See, e.g., Johan Stiernhööks ålandska domböcker; Ålands domböcker 1641–1643, ed. John E. Roos (Helsinki: Åland, 1946); and Lagläsaren Per Larssons dombok 1638, ed. Nils Edling (Uppsala: Almqvist & Wiksell, 1937). ^24. Again, no cases of hard prison are found in my Finnish case material (see note 22). ^25. Inger, Erkännandet, 102–6, which includes references to an extensive archival material. ^26. On the royal permission to use judicial torture in witchcraft trials, see Ankarloo, Trolldomsprocesserna, 177. ^27. Ibid., 115, 256–62. ^28. For Germany, see Winfried Trusen, "Strafprozeβ und Rezeption"; for France, Véronique Pinson-Ramin, "La torture judiciaire en Bretagne au XVII siècle," Révue historique du droit (1994): 459–568; and for Spain, Francisco Tomás y Valiente, La tortura en España: estudios históricos (Barcelona: Ariel, 1973). My own, hitherto unpublished studies (conducted for another research project) on Livonian court practice from the Swedish period (1630–1710) show that judicial torture was used in Sweden's Livonian possessions. Hardly incidentally, Livonian lower court judges were legal professionals. I have found the torture cases in the archives of the Lower Courts of Dorpat and Pärnu, and in the High Court of Dorpat. The cases mostly date to the first decades of the Swedish rule (1630s and 1640s) after which their number drastically decreases, thus reflecting the general downward trend of Eur

The Painful Question: The Fate of Judicial Torture in Early Modern Sweden

HEIKKI PIHLAJAMÄKI

The Comparative Context: Langbein and Judicial Torture

Judicial Torture in Tudor England: The Onslaught on Political and Religious Crime

Judicial Torture in Early Modern Sweden: The Changing Views of Legal Historians

The Sixteenth Century: Judicial Torture Gains a Foothold in Sweden

The Late Seventeenth Century: Rooting Out the Transplant

Judicial Torture and Incarceration: Ius Commune

The Changing Conception of Judicial Torture and Hard Prison in Sweden

Toward Modernity

Why Judicial Torture Never Really Made It in Sweden

Lay Judges, Extraordinary Punishment, and the Rejection of Judicial Torture: England, Sweden, and the Continent

Notes