91 With Stiernhöök and Nehrman, I would claim that in spite of being in considerable use especially in the sixteenth and seventeenth centuries, and even though the Law of 1734 left the door open to its use under certain circumstances, torture was not part of the regular Swedish criminal procedure. When torture was used, it was never used as judicial torture in the continental sense, i.e., as part of the legal criminal proceedings. In this way, the history of Swedish criminal procedure differs considerably from the continental. Stiernhöök and Nehrman understood the difference when they wrote that torture was never in use in Sweden: by torture they understood continental judicial torture and knew of no such thing in their own country. In Sweden, thus, torture remained an occasional, not systematic and judicially regulated, practice. A certain keenness in the attempt to introduce torture into the sixteenth- and seventeenth-century Swedish legal practice shows, however, that the Swedish courts enjoyed considerable independence at the time and that they were not willing to give up that independence easily.The firmness with which the Crown sought to root out torture, which it finally managed to do by the middle of the 1700s, reveals not so much the humane attitude of the Swedish kings, but another facet of the “judicial revolution”: the general tendency of the centralizing state to intervene at the local level by leaving the courts - especially the local hundred courts and the town courts — as littie room for discretion as possible. Thus, the history of torture in Sweden neatly fits the emerging picture of procedural law and the lawof proof as an instrument with which the centralizing Swedish state sought to ensure a firm grip on its judicial apparatus. Are we, then, witnessing a genuine deviation of the international pattern? I would say we are not, for judicial torture was not absolutely necessary for the functioning of the Swedish criminal system at the time when the legal theory of proof broke through in the Swedish judicial practice of the seventeenth century. In the Middle Ages - and perhaps still in the Sweden of the early sixteenth century, as Ylikangas and Schmidt have concluded from the Rules of Olaus Petri -, torture had evolved to patch the shortcomings of the legal theory of proof. However, by the time that the theory spread in seventeenth-century Sweden, other, more easily applicable ways of evading the excessive rigidities of the legal theory of proof had developed. As we have seen, these other methocis of ensuring criminal responsibility in clear cases where full proof was lacking were introduced into Swedish criminal practice alongside and as part of the novel theory of proof. As we have seen above (Chapter 4), torture was actually starting to give way topoena extraordinaria and absolutio ab instantia in conThe fact the Crown repeatedly had to ban torture is vivid evidence of the status that the legislator’s commands enjoyed in earlv modern Sweden. The War Articles of 1683, the Sea Articles of 1685, and the Roval Letter to the High Court of Tartu of December 22, 1686; Schmedeman 1706 pp. 837, 963, 1087-1088. 173
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