88 I wish to have shown that the reception of the Roman-canon lawof proof in Sweden did not, despite certain differences that mainly have to do with the meager penetration of legal professionalism and the late timing of reception, deviate fundamentally from the continental pattern. However, one essential feature of the continental systemof proof remains to be discussed. That is judicial torture. Torture: The Brave and the Free Among historians of Swedish law, the subject of torture seems to divide opinions. Howconsistently was it used? To what extent can it be considered inherent in the Swedish criminal procedure in the 1500s, 1600s, and 1700s? Olaus Petri, in his Rules (38), warned against the deficiencies of torture as a fact-finding method, although he did not completely disapprove of it.'^^ In 1672, Johan Stiernhöök wrote that torture had never been accepted in Sweden because of the people’s dislike of it. According to Stiernhöök, torture had not even been employed to extract evidence in “half-proven” crimes, for confessions thus extracted were unreliable. Instead, “the brave and the free” Swedes {“animos^^ & libera^”) relied on the “conscience of the good men” honorum virorum conscientiije”) to reveal the truth.*57 David Nehrman-Ehrenstråhle states that torture had never been in use in Sweden; however, hard imprisonment could be used and was especially important whenever the kingdom’s security was at stake. Moreover, in order to extract a confession from someone accused of homicide, the king had at times ordered that the suspect be hung on the wall from handcuffs; lower court judges were not allowed to give orders of this kind.*58 Are these writers to be trusted at all? Later authors have, indeed, been inclined to claimthat although torture was forbidden by law, it was in fact used. Some modern historians have shown that, in spite of Stiernhöök’s denial, torture did exist in Sweden.*59 Schmidt Schmidt 1966 pp. 275-276; Ylikangas 1988 pp. 58-59. Olaus expressly allowed for the use of judicial torture in cases of treason, homicide and those involving honor. Stiernhöök 1962 p. 124. Of modern historians, Johan Söderberg explains the scarcity of torture in Sweden bv the persistence and strong position of the oath; Söderberg 1990 pp. 229-257. Soderberg’s explanation seems, however, to beg the question of why oaths persisted. As stated above, judicial torture has been seen as a necessary complement of the legal theory of proof; torture has been used to ensure confession. The point is, however, that both torture and the legal theory of proof require a state strong enough by its authority to torture its citizens and to set material truth as a goal that its judiciary must try to reach. Such a state did not develop in Sweden until the late 1600s. Nehrman 1759 pp. 158-160. ■59 Olaus Petri takes a partiallv negative stand towards torture in his Instructions. For Olaus, “It is better to let the guilty go free than to torment the innocent.” (instr. 31) Instruction 38 reads: “Let no one be condemned on the basis of a confession to which he is tortured and tormented, for 158
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