Axeman as Ballroom Dancer

David Blackbourn

  • Rituals of Retribution: Capital Punishment in Germany 1600-1987 by Richard J. Evans
    Oxford, 1014 pp, £55.00, March 1996, ISBN 0 19 821968 7

In future times people will look back on the death penalty as a piece of barbarity just as we now look back on torture.’ These confident words were spoken by a member of the 1848 Frankfurt Parliament, which voted amid cheers to abolish capital punishment, except in military law. By the spring of 1849 it had been ended in a score of German states, including Prussia. Like the liberty trees and torchlit processions that greeted the outbreak of revolution, ending capital punishment was a symbolic act. It was intended to mark the end of princely arbitrariness, show the state’s respect for human life and provide the cornerstone to a new, higher morality.

The abolitionists drew on arguments that had been around since the Enlightenment. Cesare Beccaria’s Dei delitti e delle pene (1764) had made the case that capital punishment was a violation of the social contract and an ineffective deterrent; only the power of custom perpetuated it. This failed to persuade most early German commentators. Kant insisted on the importance of retributive justice; even Karl Ferdinand Hommel, the ‘German Beccaria’, parted from his mentor over the death penalty. But abolitionist sentiment grew in the first half of the 19th century. Capital punishment offended liberal belief in the moral rehabilitation of the offender, and the increased attention that jurists paid to psychiatry (the first German textbook of forensic psychiatry appeared in 1835) raised the issue of moral unfitness as a mitigating factor in crime. Mounting concern with the social question underlined the fact that, in Friedrich Noellner’s words, ‘the death penalty is applied almost exclusively against the proletariat.’ Two further arguments were forcefully made in 1840 by a Heidelberg professor, Carl Joseph Anton Mittermaier: first, that there was no statistical correlation between capital punishment and the number of capital offences; second, that the death penalty distorted the judicial system because it led to a greater number of acquittals. These arguments still figure in the abolitionist case.

Mittermaier and his contemporaries believed that history was on their side. Certainly, the changes in the incidence and character of capital punishment over the previous two centuries were striking. In most parts of the Holy Roman Empire, the Carolina Criminal Code promulgated by Charles V held good into the 17th century. It prescribed the death penalty not just for murder and treason, but for arson, blasphemy, counter-feiting, conjuring, witchcraft, abortion, rape, unnatural sex, highway robbery, robbery or attempted robbery with violence, and a third conviction for theft (an early and extreme version of ‘three strikes and you’re out’). As the absolutist state grew more secure, however, major changes occurred. Punishments such as breaking on the wheel or burning at the stake gradually disappeared, along with the use of torture to obtain confessions; methods of execution were standardised (usually decapitation with the axe) at the same time that overall numbers declined. Enlightened absolutist rulers such as Frederick the Great reduced the number of capital crimes. And as executions became fewer, each one became a more sternly ritualised spectacle of state power designed to have an educative effect.

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