93 transformation that took place in the law of proof, are thus revealed. Without a proper understanding of these deep beginnnings, no serious comprehension of the emergence of free evaluation of evidence would be possible. So far, however, little attention has been paid to the actual actors of the seventeenth-century process. Before concluding this chapter I shall, therefore, gather together certain arguments to illuminate that point of view, which is, essentially, the point of view of power and legitimation. Among the groups involved and active in the development of the law of proof, three can, then, conveniently be classified. First is the power elite, by which I refer to the highest central authority in society. In seventeenth-century Sweden, that ultimate authority resided in the king and his Council, composed of the noble aristocracy. In the seventeenth-century centralization process, provincial authorities, assisted by the bishops and priests of the state Lutheran Church, were bound to the orders C)f the central administration. The king, assisted by his Council, was in charge of the general direction of politics. From the point of view of the power elite, in order to create an effective, hierarchical judicial apparatus that could push the “judicial revolution” and the harshening criminal law measures through, a rational theory of proof was needed. The statutory theory of proof was such a system, for it helped to bind the judiciary - the high courts, and especially the city and the huncired courts - to the statute and, thus, it limited their range of action, theoretically, to a minumum. Therefore, the Crown attempted to root out the old system of oaths, but seemed reluctant, at first, to accept the absolutio ab instantia and extraordinary punishment. Only as it became obvious that the legal theory of proof could not function effectively without these institutions were they accepted, and even partially codified, first into the War and Sea Articles and later into the Lawof 1734. The right to apply these legal institutions was, however, reserved to the noble high courts only. The second level of legal actors that I wish to discern is that of the nascent seventeenth-century legal professionalism which can be located at the high courts. Judicial administration belonged to the privileges of the nobility.Although, to my mind, it would be incorrect to speak of a “profession,” at least in any modern sense of the word, when referring to the seventeenth-century judges,the judiciary surely had interests of its own that could not be reTiihonen 1994 (b) pp. 39—15. The rise of the Council to an actual governmental body began in 1625, when the king ordered the Council to act on his behalf during his absence. Until the absolutisrn fromthe 1680s onwards, the Council was composed of the members of the aristocratic elite. Ibid. pp. 45-49. Ibid. p. 42. Referring to their level of the legal education and practical experience, Thunander calls the Göta High Court judges “a professional group” {professionell församling), Thunander 1993 pp. 6869. In the modern sense, however, the term “profession” is frequently used to denote a situation where common education, instead of the same social class, becomes the major common denominator of a given group. See Konttinen 1991 pp. 217-220. 177
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