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Abstract
The article deals with judicial torture, which was prohibited in the Danish legal system in the early modern period, essentially focussing upon the time from the Lutheran Reformation in 1536 to the introduction of a comprehensive statute book for the entire kingdom in 1683. The author’s perspective is comparative, especially looking for parallels and contrasts in Sweden during approximately the same period, but to some extent also including the case of England. The common feature of the three kingdoms is that they were outside the regions governed by the Romano-canonical ius commune.
The article is based upon an analysis both of Danish legislation relating to torture and of the limited number of cases in which torture was applied, in most of these cases in contravention of current legislation. The author concludes that if 16th- and 17th-century Denmark saw extremely little use of torture, the main reasons are: in the first place, an internal political climate that was far more stable and peaceful than in Sweden and England, both of which were affected by dynastic rivalries and succession crises during this period; secondly, the fact that commissions of inquisition with extraordinary judicial powers were not used in Denmark also contributes to the Danish development.
Keywords:
Acknowledgements
I would like to thank Heikki Pihlajamäki, Helsinki, and Jens Chr. V. Johansen, Copenhagen, for their comments and help, and the anonymous reviewers for their useful comments.
Notes
1 Linderholm, De stora häxprocesserna i Sverige, 63.
2 In 1645, Bohus Len was pawned to Sweden for 30 years as payment of an indemnity, and was finally handed over to Sweden in 1658 after a new Danish defeat in a war with Sweden.
3 Pihlajamäki, ‘The Painful Question’, 562.
4 Ibid.
5 Langbein, Torture and the Law of Proof.
6 Some Swedish historians have claimed that there was no difference in the use of torture in Sweden and the ius commune countries in early modern times, but Pihlajamäki has convincingly argued that their results were built upon a misunderstanding of what torture was in that period. Pihlajamäki, ‘The Painful Question’, 561–3.
7 The word ‘torture’ is used here in the sense of judicial torture of the ius commune, and not in the modern post-Enlightenment sense, in which there is no clear distinction between torture and harsh punishment. For the difference, see Pihlajamäki, ‘The Painful Question’, 563–7, 576–8.
8 My intention here is not to oppose Langbein and Pihlajamäki’s conclusions, merely, as Pihlajamäki did with his article, to add a more nuanced picture of the differences between non-ius commune countries which, on the surface, look alike.
9 In his article, Pihlajamäki lays out a Stand der Forschung for the study of judicial torture in England and in the ius commune tradition on the continent, especially regarding the works of John Langbein and Mathias Schmoeckel. In order not to repeat Pihlajamäki, I will only mention this research if I have something to add to the discussion. See Schmoeckel, Humanität und Staatsraison; Fiorelli, La tortura giudiziaria nel diritto comune.
10 Even though new punishments in the early modern period, such as forced labour and deportation, were considered milder than the death penalty, confessions were not that important so the use of judicial torture was limited, and this was probably combined with and linked to new theological and philosophical trends that were more critical of torture. See Pihlajamäki, ‘The Painful Question’, 557–8; Langbein, Torture and the Law of Proof, 10–12, 64–9; Schmoeckel, Humanität und Staatsraison, 239, 536.
11 Judicial torture was, however, never legalized. In 1604 an attempt was made to make it a part of the legal procedure in cases in which it proved impossible to find an accused person guilty in the existing court system despite strong circumstantial evidence against him, but this was refused by the Council of the Realm. The Council’s reason for declining the proposal was that ‘no-one should be condemned on the basis of tortured confession, but according to Swedish law, witnesses and full proof’; Pihlajamäki, ‘The Painful Question’, 570.
12 This was primarily due to the struggle between Catholics and Protestants, and later prosecutions against people who did not follow the Anglican interpretation of the Protestant faith.
13 During the reign of Erik XIV (1560–1568) torture was used after political opponents had been sentenced to death, but judicial torture was used by his predecessors; see Pihlajamäki, ‘The Painful Question’, 567. Torture was used on persons who had been sentenced to death, and what they confessed to under torture could be used against others. The Swedish historian Jerker Rosén argues that during the trials of a group of Swedish noblemen led by the Stures, who were suspected of treason, a number of men were sentenced to death just to have them tortured so as to obtain evidence against the suspected noblemen; see Rosén, Studier kring Erik XIV:s Höga Nämnd, 60–4.
14 Pihlajamäki, ‘The Painful Question’, 561; Ankarloo, Trolldomsprocesserna i Sverige, 256–62.
15 For the witch trials in Norway see Hans E. Næss, Trolldomsprosessene i Norge; on Finnmarken, see Hagen, Hekser fra forfølgelse til fortryllelse, especially 203–10.
16 The letter books for 1535 to 1550 are found in Erslev and Mollerup, Danske Kancelliregistranter and from 1551 in Kancelliets Brevbøger.
17 Résumés of all the cases are found in Tamm, Kongens Retterting, vol. 2.
18 For a detailed introduction to the Danish procedural system, see Andersen, Studier i dansk proceshistorie. It has also been published in a revisited English version that only covers the Middle Ages, but hardly any changes took place in the procedural system after the Reformation; Andersen, Legal Procedure and Practice.
19 Andersen, Den danske rigslovgivning, the Law of the Countryside, chapters 72, 77–8, 178, 180–1, the Law of the Towns, chapters 44–45, 65.
20 It is therefore a misunderstanding for Linderholm and Ankarloo to claim that judicial torture was legalized in Denmark from 1522 onwards. Linderholm, De stora häxprocesserna, 69; Ankarloo, Trolldomsprocesserna i Sverige, 65. Christian II tried in many ways to reform the Danish society following the German and Dutch models, an attempt that was not successful and in the end led to his fall; hence the existence of judicial torture in his legal codes cannot be taken as proof for the desire among the Danish judges or within the courts.
21 Kolderup-Rosenvinge, Danske Recesser og Ordinantser, vol. IV, chapter 17. Om pynlig Forhöring: ‘Item skal ingen pynligen forhöres uden then, ther lougligen tillfornn forwundenn er til Döde for nogen Ugierning’, 224.
22 Ibid., chapter 8. Om Tings-Windne, falske Widnisbyrdt oc Menedere: ‘Item skalle y heller nogen udediske Mendiske, eller nogre andre, som forwunden er for nogen uerligh Sag, Tyffue, Troldkarle eller Troldqwinder, staa till troende, enthen udi Windnisbyrdt eller i andre Maade, ehuadt the wille sige eller windne paa nogen’, 219.
23 Secher, Corpus Constitutionum Daniæ, vol. I, Koldingske Reces 1558, 13. decbr., art. 18, 19, 18.
24 Kancelliets Brevbøger, 27 April 1564, 479.
25 Gønge Herred is situated in the northern part of the former Danish province of Scania, where in 1563 a corps of volunteers formed to defend the borders against Swedish raids. This was an important task, since the Swedes had led some very bloody raids into the neighbouring province of Blekinge.
26 Kancelliets Brevbøger, 25 February 1565, 564–5.
27 Kancelliets Brevbøger, 19 February 1567, 140–1.
28 August, Elector from 1553 to 1586, was married to Anna of Denmark, a sister of Frederik II.
29 Kancelliets Brevbøger, 21 March 1563, 233.
30 Secher, Corpus Constitutionum Daniæ, vol. I, Koldingske Reces 1558, 13. decbr., art 67, 47.
31 Kancelliets Brevbøger, 27 August 1638, 464.
32 Kancelliets Brevbøger, 4 January 1597, 77.
33 See, for instance, Kancelliets Brevbøger, 10 November 1594, 357–8 and 18 May 1596, 639–40.
34 Kancelliets Brevbøger, 6 June 1597, 167.
35 Kancelliets Brevbøger, 26 July 1597, 188.
36 ‘Da Jomfru Ingeborg Bilde har ladet Pigen Inger Christensdatter pinlig forhøre, skønt hun var lovuforvunden og det strider mod Recessen’. Kancelliets Brevbøger, 26 July 1597, 188.
37 Jørgensen, Dansk Strafferet, 231–43, 318–49.
38 There was a long line of cases before the King’s Court in which she was involved, and the issue in most of them was that she either refused to fulfil her obligations or she claimed a right to some other nobleman’s land. She lost most of the cases. Tamm, Kongens retterting, vol. II, no. 1795, 29 July 1590, no. 1965, 6 June 1594, no. 1990, 19 July 1595, no. 2041, 16 June 1596, no. 2099, 26 June 1598, no. 2183, 19 April 1602, no. 2248, 30 June 1603.
39 Christian IV, born 1577 and king from 1588 to 1648, was crowned in 1596 when he came of age. Before that, the kingdom had been ruled by regency led by the dowager queen.
40 Secher, Corpus Constitutionum Daniæ, vol. I, Frederik II’s Søret of 9 May 1561, chapters 49, 145.
41 Reitzel-Nielsen and Fenger, Danske Domme 1375–1662, vol. VI, no. 798, 182. Here the later events are also reviewed.
42 Ibid., 184. Even though the accusations of Helmer Hoggreffue’s brutality might have been exaggerated, another letter from the letter books shows that he had a history of threatening the life and honour of his enemies. See Kancelliets Brevbøger, 4 October 1597, 211.
43 The greater crime superseded the lesser so that Morten Lensmand is referred to as ‘innocent’ in the court report.
44 Reitzel-Nielsen and Fenger, Danske Domme, vol. VI, no. 798. ‘Dømpt vdi kong : Maz : naade ocg unaade’. 185.
45 Kancelliets Brevbøger, 26 January 1602, 701–2; it is uncertain whether the letter is from January or June, but since it is placed in the letter book under January, this is the date used here.
46 Reitzel-Nielsen and Fenger, Danske Domme, no. 798, 181–8.
47 Ibid., 185.
48 Kancelliets Brevbøger, 30 June 1603, 48.
49 It was quite common for poor and defenceless people to appeal directly to the king instead of going to court, which was a difficult and costly affair.
50 Kancelliets Brevbøger, 27 July 1631, 542.
51 Kancelliets Brevbøger, 12 January 1632, 654.
52 The case is mentioned in Tamm, Kongens retterting, vol. II, no. 4505, and in its full length at The Danish National Archives (DNA), Rettertinget, Dombog 35, no. 4510, fol. 191V-197V.
53 The case is mentioned in Tamm, Kongens retterting, vol. II, no. 4630, and in its full length at DNA. Rettertinget, Dombog 36, no. 4630, fol. 93R-123R.
54 Brøndum-Nielsen and Jørgensen, Danmarks gamle Landskabslove, vol. VIII, Valdemar’s Law of Zealand, new version, chapter LXXXVII .
55 See Whitman, The Origins of Reasonable Doubts, about the importance of getting a confession so the judge would not have to face the wrath of God by passing a false judgment.
56 Kancelliets Brevbøger, 21 August 1571, 61.
57 Kancelliets Brevbøger, 22 August 1576, 82–3.
58 Even after the Reformation, the canonical method of reckoning kinship was preserved in Denmark. Since the evidence against Weisweiler for incest was circumstantial, he and the two sisters were acquitted at the district court where the case was raised. Garstein, Rome and the Counter-Reformation, 167.
59 Kancelliets Brevbøger, 12 May 1624, 131.
60 Secher, Corpus Constitutionum Daniæ, vol. I, Koldingske Reces 1558 13. decbr., art. 16, 17–18.
61 Kancelliets Brevbøger, 22 February 1634, 466, ‘for den rette Sandhed her kan komme for dagen’.
62 Iuul, ‘Højesterets domspraksis som retskilde’, 1–62. The journals of the consideration of judgment by the judges at the Retterting show that he very seldom used that power. See Knudsen, ‘Voteringsprotokollerne fra Kongens Retterting’, 28–9.
63 Kancelliets Brevbøger, 30 March 1635, 112.
64 Kancelliets Brevbøger, 31 August 1625, 488. The authority to exile the woman was found in ‘Law concerning sorceresses and their helpers’ (Forordning om troldfolk og deres medvidere), where so-called ‘white’ or not-tortious magic was punished with confiscation of their fortune and excel. Secher, Corpus Constitutionum Daniæ, vol. 3, 12 October 1617, § 1, 517.
65 Maren Sliids, who was burned in 1641. Even though the documents of the case do not specifically mention judicial torture, it can be read between the lines. Jacobsen, Danske domme i trolddomssager. Tamm, Christian den Fjerdes kanslere, 132–3.
66 Witchcraft in Denmark in the early modern period has been the subject of very extensive studies, and there is hardly a case that has not been recorded and discussed. Therefore I will not go into detail on the results but instead refer to some of the best studies. See Johansen, Da Djævelen var ude; Jacobsen, Danske domme i trolddomssager.
67 Iuul, Kong Christian den Femtes Danske Lov, vol. 6, chapter 4 §1, 281–2.
68 For the background to the ordinance, see Krogh, ‘Henrettelsens fascination’, 19–34; Krogh, A Lutheran Plague.
69 Kancelliets Brevbøger, 2 October 1608, 745.
70 Kancelliets Brevbøger, 10 July 1620, 877–8.
71 Ewen, Witch Hunting and Witch Trials, 65–9; Trevor-Roper, ‘The European Witch-craze, 118–19; Macfarlane, Witchcraft in Tudor and Stuart England, 9, 20.
72 Lyby, Vi evangeliske, 231–440.
73 Andersen, Confessio Hafniensis.
74 Heath, Torture and English Law.
75 Langbein, Torture and the Law of Proof, 94–128; the same is shown by Heath, Torture and English Law, 201–39.
76 Pihlajamäki, ‘The Painful Question’, 586–9.
77 Önnerfors, Justitia et prudentia, 115–27.
78 Ibid., 68–70. For a more detailed study, see Jägerskiöld, Studier rörande receptionen av främmande rätt i Sverige.
79 Tamm, Dübeck and Slottved, Juraen på Københavns Universitet, 71–5, 143–7.
80 In early modern Denmark, the military and all its personnel were subject to special military law. Due to the need for discipline, its penalties were much more severe than in civil law.
81 Johansen, ‘Absolutism and the “Rule of Law”’, 157.
82 Johansen, ‘Retssamfundet, retsstaten og retssikkerheden’, 123; Johansen, ‘Absolutism and the “Rule of Law”’, 162–3.
83 Fussing, Herremænd og fæstebonde.
84 Iuul, Kong Christian den Femtes Danske Lov, book 1, chapter 20, 46.
Additional information
Notes on contributors
Helle Vogt
Helle Vogt is an associate professor in legal history in Faculty of Law, University of Copenhagen. Among her publications are Slægtens funktion i nordisk højmiddelalderret: kanonisk retsideologi og fredskabende lovgivning (Copenhagen: University of Copenhagen, 2005) and The Function of Kinship in Medieval Nordic Legislation (Leiden: Brill, 2010). Address: The Faculty of Law, University of Copenhagen, Studiestræde 6, Copenhagen K 1455, Denmark.
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