Alternative Law Journal
Richard J. Evans; Oxford University Press; 1996; $190.00 hardback.
This long and interesting book uses as its starting point, an account by John Taylor, an Englishman who was visiting Hamburg in August 1616, of the execution ritual for a prisoner who had murdered his young daughter with an axe. Taylor describes the religious ceremony which precedes the condemned man's punishment and then the process by which the murderer was tied down and a wagon wheel used to break all of the bones in his body. This process was known as being broken with the wheel.
Evans details the complete acceptance by I 7th century German society of such brutal punishments and the strong religious undertones attaching to the ceremonies during which the community exacted its retribution from perceived wrongdoers. The book provides fascinating insights into the role of the church in the death penalty throughout German history and explores the thinking that underpinned the church as one of the key supporters of the death penalty as a form of punishment.
Changes in attitudes towards the death penalty are considered by Evans to be matters of fashion. Rituals of Retribution shows why these attitudes have changed and the reason that Ger man society either supported or had concerns about the death penalty.
The sorts of forces which led to changes in the way the death penalty was perceived, were complex. Beccaria, one of the towering figures in the history of the issue in 1764, argued strongly that the basis of society was an agreement amongst its members and that the death penalty was at variance with such an agreement. His ideas formed the basis for liberal reformers and for a change in the way punishment was to be seen.
Aside from the direction of intellectual currents which may have affected the way that elites viewed capital punishment, there were broader societal changes. Evans indicates that the history of Germany and England were very different. England did not have a police force until the 1830s and used the death penalty as deterrent for minor crimes of dishonesty. In that country, with the rise of the Chartist movement, a good deal of popular sympathy with the condemned grew over time. In Germany, in contrast to England, societies were well ordered and authoritarian. The death penalty was reserved for more serious crimes such as murder. There was not the perception that the use of the death penalty was as class based as in England where it was used in a rather naked way to protect the interests of property. Nevertheless problems arose. In the medieval period the condemned would accept their lot and repent prior to execution and have a solemn demeanor. In the 18th and 19th century the condemned stopped playing the game. There were numerous incidents when people about to be executed would ridicule the priests and officials, do imitations and put on shows of bravado. Combined with this, the overall number of executions in Germany started to decline. This meant that the executioners did fewer and fewer executions and lost practice. The modes of execution in Germany at the time involved the use of a sword or axe. The lack of skill meant that a significant number of executions were botched. This led to an end to public executions in the 19th century. (It is of interest that France continued to have public executions until1939. Although a democratic country, the method of execution used was quick and was not as unsightly.)
In the 1840s in Germany, the success of liberal idealism went close to abolishing the death penalty. Studies showed that crime could be related to the movement of the bread price and hunger in some communities. However, the fear of social revolution and the development of new intellectual fashions meant that within 30 years the death penalty was back to stay. The popularity of social Darwinism led to theories that criminals acted as they did because of hereditary propensities. The execution of serious criminals became fashionable as a means of removing undesirables from the gene pool. This was a means of rebutting the argument that criminals could be reformed in the prison system. At the same time Bismark wanted to keep the death penalty as a means of keeping social revolutionaries under control. An incident in which some anarchists tried to kill the Kaiser with a bomb, created enough hysteria to keep the death penalty solidly on the books.
In modem times the arguments for the death penalty usually are based on specific cases. Abolitionists will point to specific miscarriages of justice, proponents will point to gruesome murders. In Germany it was no different. It is interesting to read that between the wars Germany had a run of sensational cases. There was one vampire sex killer who would drink the blood of his victims to achieve sexual fulfilment, and another mass murderer who ate some of his victims. The effect of these cases was to swing popular feeling back and forth. Thus a case in which there might have been wrongful execution could lead to a rise in abolitionist sentiment. A gruesome murder could lead to increased support for retention.
The death penalty was retained until the end of the Second World War in West Germany. It was abolished by a right wing government to prevent suspected war criminal from being executed (surely something of an irony). In the Democratic Republic it lingered on until the Unification of Germany. Evans argues the Communist regime was undemocratic and unpopular. It used the death penalty as a means of keeping members of its security apparatus under control.
Rituals of Retribution is long but readable. It contains vast amounts of information, including the fact that in Prussia, up to 1939, people were executed by hand held axe. Hitler introduced hanging at that time as he thought it was a more degrading way for people to die. A must for anyone who is interested in the history of criminal law.
Tom Munro is Principal Legal Officer at the Aboriginal Legal Service, Melbourne.