martin bergman interpretations of and reactions to crimes committed in order to be executed longingfor the scaffold
To Ingrid-Maria
stockholm 2024 GRUNDAT AV GUSTAV OCH CARIN OLIN The Olin Foundation for Legal History INSTITUTET FÖR RÄTTSHISTORISK FORSKNING
The depicted medal of Johan Stiernhöök, engraved by C. M. Mellgren, was made on behalf of the Swedish Academy in 1837 Publisher institutet för rättshistorisk forskning Grundat av Gustav & Carin Olin box2298, 103 17 Stockholm e-post: info@olinfoundation.com www.olinfoundation.com isbn 978–91–86645–21–2 issn 0534–2716 Printing & Binding Tallinna Raamatutrükikoja, Tallinn Graphic Design Pablo Sandoval Cover picture & Spread La peine capitale, 1908, oil on canvas Émile Friant(1863–1932), french painter photo: wavelength photography, 2009 The Joey and Toby Tanenbaum Collection, 2002 ©art gallery of hamilton, ontario, Canada Order & Distribution Jureab. Artillerigatan 67 114 45 Stockholm tel + 46 8 662 00 80 e-post: order@jure.se www.jure.se Photographer Baltasar Aguirre
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martin bergman
interpretations of and reactions to crimes committed in order to be executed longingfor the scaffold
11 PREFACE
he prehistory of this book is long. When working on my dissertation, presented in 1996, Ingmar Brohed (R. I. P.), my doctoral su- Tpervisor, suggested that instead of borrowing lots of books from countries beyond the Nordic, Icould go to some big library abroad, such as the Staatsbibliothek zu Berlin, to see many of those books there. I did. Starting there I found on this subject some interesting literature and documents in libraries and in archives primarily in Germany and Finland resulting in some pages in my book. So this work with its international perspective has continued, travel and visits to libraries and archives followed by texts. Except for the published texts, some of them preceding one part or another in this book, two unpublished texts focusing on this subject have been discussed at the European social science history conferences in Berlin 2004 and Belfast 2018. These two texts display a development as the first one was more focused on the crimes and their settings while the second from an even more international perspective questioned the idea of these actions being possible to describe as a specific crime. And now, after decades, finally a book. This delay makes it even more impossible to do a full list of the hordes I should give thanks to. Therefore only afew of so many will be mentioned, sadly. However, a big Thank you to all that have helped and inspired me in this endeavour! Thus only a few names, mostly from recent time, of many will be mentioned. Recent time, however, does not apply to Hans Andersson who managed to tempt me with the ESSHCconference in Berlin 2004, for me a start of many refreshing dives into contemporary research. When three obstacles the covid19 situation, my own disease, and the huge problems with reading substantial texts in handwritten Nederlands from the eighteenth century hindered me from visiting yet another archive, Stadsarchief Amsterdam, Lodewijk Wagenaar came to my rescue. Eventually it was time to ask others to read my text. preface longing for the scaffold 12
It has been many years since I have been an attending participant in the academic environment of the universities, but research and knowledge luckily see no boundaries so where Iwork now there is an advanced academic environment primarily through Melanie and Christian von Goldbeck who also have read and given numerous suggestions. Despite my many years away from the university environment a number of readers there have given their views after reading my texts. First Sven-Erik Brodd read chapter five and later Anders Jarlert and Roddy Nilsson has read the full text. Finally and officially Kjell Å Modéer has read it leading to its approval for publication. So many good and often surprising suggestions have been given and some I have followed. Checking my English Charlotte Merton has also given me so many good suggestions. Sadly I have not followed them all. Those choices, as all choices, are my responsibility, so if you see bad English or other mistakes in this book they are all due to my stubbornness. When time arrived to wonder how an emerging text in a computer could be transformed into abook Claes Peterson has, during many phone calls, been positive, supportive, and hopeful. In the preparation and publication support have been given by the Olin foundation and the Pleijel foundation. For this I am truly grateful. As it generally is when publishing text in her other home field, natural sciences, the last name is of greatest importance, my wife IngridMaria. This book would never have been possible without her love and support in so many ways, also due to my disease hindering me, but here it is suitable to mention how her intellect proven by her double qualifications in theology and biology has on many more occasions that I can remember given me ideas and clues leading somewhere. Due to some unforeseen events I have done some, but not many, substantial additions or changes to this book since February 2022. Common in prefaces and very suitable in this case is to say that all faults are mine while to everybody else, named or not: Thank you! martin bergman, västervik, march 2024 preface 13
11 17 18 19 41 43 45 53 61 69 71 80 91 94 95 107 109 112 123 125 147 155 165 176 181 longing for the scaffold 14 contents preface introduction Fictional Scientific thecrimes Other crimes than murder Murder the execution and its message The execution between church and state The preparation for the execution – Among Catholics – Among Lutherans – Among the Reformed – Among Anglicans The delivery of messages by the church The delivery of messages by the state The delivery of messages by the condemned Martyrs on the scaffold different realities and reactions German states Denmark Sweden England France Other states
187 221 222 230 239 242 246 255 261 262 265 277 290 292 292 297 341 342 342 353 contents 15 a mostly german debate on conversion and salvation the strategies behind the reactions and the counterstrategies The strategies behind the reactions The counterstrategies the explanations of the acts Suicide A result of Christian theology The psychiatrical perspective Crimes without cause Do the explanations explain? finally summary abbreviations sources and literature Unprinted material Printed material Internet index Names Places
17 INTRODUCTION
longing for the scaffold 18 itting in the gaol, she wondered about her future. She had not thought she had a future. In the spring, she had been imprisoned in the gaol. S Over the summer there was the first trial. She knew it had been followed by a great many letters to and from Jönköping and Stockholm — she had seen some of them — and at some point by the end of the year she was to have been beheaded and finally gone to heaven. Instead, now, here she was. Outside it was late autumn and she had heard she would not be executed because she was insane. Who would have wanted that? But she could only agree. She had thought she could flee her horrible sins and reach heaven by committing her greatest sin ever. ‘Thou shalt not kill’: she had unequivocally sinned against the Fifth Commandment. Yes, she had been insane. How could she otherwise have even imagined drowning poor little Johanna? She had lied, too; she said she would play with Johanna. Tears came. As they should, when thinking of Johanna dead and — relief! — gone to her heavenly rest as she was baptised, while she, who should be dead had to live. How unjust! But perhaps she had misunderstood salvation? Perhaps she had misunderstood God? Was God just or merciful? She had tried to fool the just God, but one cannot fool the all-knowing God. He had restored her sanity, and she would live a life of repentance and tears until finally, probably after a long life, she would meet Him. She would meet the just and merciful Saviour, Jesus Christ. She had seen Him in the big new church, not the little one where she had been baptised and confirmed. Here, he was shedding tears in Gethsemane. Poor Johanna! Could the Saviour who died to forgive the sins of the world forgive such a sin? Thus far, invention. Fiction is one way to reach out to the ultimately unattainable centre of this study. For the truth is that no one today knows much of the inner life of Maria Johansdotter, or of any of the persons whose actions have led to interpretations and reactions. The little introduction Fictional
we know about her situation and, possibly, her motives can be found on pages 161–163, picking up the scholarly thread which begins here. Generally, a crime is defined by the actions taken. Theft can be defined as the taking of a physical object not belonging to the actor, without the consent of its owner, and providing the actor has no right to take it — or something like that. To which we must generally add the intent to commit the act, even if it is known to be illegal. If an ordinary, well-known act is so tricky to define, how hard is it to define – to study – a crime where the physical act and the very existence of intent might be called irrelevant, because other people’s intended reaction is the major defining factor? It is always difficult enough to study intent. How to pinpoint a crime when there is no consensus about the motive or its importance for the act, and for different reasons many actors seek to hide their intent? Faced with this, it is not surprising the results in legislation, practice, and research vary. A crime, or rather its various conceptual elements, can be constructed in more than one way. The quickest and most efficient is probably legislation.1 Fundamental for most people’s reactions is the existence of a crime according to the law. A crime with a name and definition, and carrying a specific penalty, once inserted into the rule of law will see the majority try to comply with the law and cease doing what is now prohibited. Eventually, many will use the name of the new crime and think of it, if they think of it at all, as universally accepted as a crime. One might call this pattern, whatever its starting point, a discourse coming into being. A fruitful perspective is presented by Peter King: ”All definitions of crime are, of course, social constructions changing over time and between societies, social groups, and individuals.”2 Crime, being more than Scientific introduction 1 See i e Lewis 2016 p 1 sqq on the importance the construction inCCCof infanticide and abortion would have for centuries to come. 2 King 2000 p 6. This quote is from a precise discussion about how difficult a definition of a type of crime, in his example property crime, can be, King 2000 p 6 sq. 19
introduction explicit legislation, is widened to its understanding in society. One can also see the different understandings clash, between the people who intentionally commit the crimes and the people who abhor them. There are elements of development, discourse, and social construct in this history, but mostly we find segments of society trying to come to grips with the strange aspects of well-known crimes. How could someone walking down the street just shoot dead the first person they met? How to fathom how a kind, trustworthy babysitter can suddenly kill their charge? Why enter a church only to commit sacrilege? Why would someone desire to be executed? Was there some common motive or setting that could explain such crimes? Maybe the most appropriate definition that can be given when it comes to murder, which probably was the most prolific and definitely the most infamous variation of this type of crime, is summed up by Tyge Krogh: ”Det særlige ved disse mord var, at morderen ikke nærede nogen uvilje mod offeret, og at hensigten med mordet var at blive henrettet.”3 The crimes that are the focus of this book were thus acts committed to engineer the perpetrator’s death. This was the underlying motive which defined the crimes. Krogh has, however, also described how uninterested all participants in the trials in the courts of law, in his studies the courts in Denmark, often were of the motive behind a crime.4 Despite the many obstacles, there is an abiding interest in motive. It has been central to many genres of crime fiction; modern legislators are preoccupied with finding ways to legislate about general terror as a motive. In historical studies, at least of crime, though, the word motive has at least a double meaning. There were the motives for a crime, especially 3 ’Distinctive for these murders was that the murderer held no bad feelings for the victim and the reason for the murder was to be executed’, Krogh 2004 p 21. 4 Krogh 2020 p 229 sq: ”A suicide murder is defined by its motive, but the motive was not relevant for the courts until 1767, when a decree was issued against murders with intent to be executed. The courts were interested in establishing the facts and in premeditation.” Krogh 2012 p 34: ”The lawyers accusing, defending and judging were not particularly interested in the perpetrators’ possible religious motives for committing the murders. Such motives did not affect the charge and could not be used to plead mitigation of sentence. If the court records were our only source, it would be difficult to maintain a dominant religious motivation.” 20
introduction of those directly responsible. Then there were motives as motivations, generally present in the mentalities, literature, and art of the day, which inspired people to action or reaction. In this case, the first type of motive, driving actual acts, was in the middle of a cluster of problems that face students of these crimes. More problematic than the second type, this was motive not as a reason to commit a specific crime, but as a means to an end that lay beyond the crime. Even more problematic is the fact that motives were often mixed. A murder for some other reason – anger, for example, or revenge – might be reinterpreted as longing for heaven when execution was imminent. Another claimed motive, eventually occurring, was having been incited by the devil.5 Such non-immanent ideas were common in that situation, often in a state of remorse. The confusion over motives is also illustrated by a case from Napoleonic France. A man murdered his wife in a fit of jealousy as she lay asleep. In the morning, he went to the prosecutor and said he deserved to die. Although he claimed to be mentally sound, he was found insane at his trial and confined to a hospital. There he eventually committed suicide, leaving a letter in which he said he would have preferred it if the executioner had given him his deserved death, but instead he had had to pay his debt to society by his own hand.6 Here, the criminal, if we listen to his words and actions, found himself guilty and sentenced himself to be executed, which was the result not of longing but justice. Thus, although he insisted that he should be executed, longing for death was not his reason for committing murder.It is therefore doubtful he should be included in a study of people who committed crimes in order to be executed. People have always had their reasons to seek execution. However, they can often be hard to discern, not least because it eventually was recognised that admitting them might deliver the perpetrator somewhere else than the scaffold. Such a motive may have been hidden or distorted in the course of coming down to us, whether at the hands of clerks of the court or writers of true crime stories, who may or may not find that mo5 See e g Byard and Maxwell Stewart 2018 p 1147, Krogh 2012 p 35, and Stuart 2023 p 7 sq. 6 Falret 1822 p 312 sqq. 21
introduction tive, or any motive, of interest. Equally, studies can seek to identify motives even when there were no confessions or other sources for the perpetrator’s views. Alastair Bellany, for example, uses material such as reported shouts to interpret the motives behind a crowd committing a murder in London in 1628.7 And of course, reading from the sources and the literature, the greatest uncertainty about a perpetrator’s primary motive seems often to have existed in the mind of the perpetrator.8 The direct motive most often discussed in the literature was probably the wish to go to heaven soon instead of living out one’s span until a natural but uncontrolled death.9 However, several variations can be found. Was the main reason the hope for a certain way to salvation? Or the fear of not resisting the temptations of the devil, or perhaps a particular temptation? Or of falling into apostasy, and so going to hell? Or was it the horrors of life here that needed to be replaced? Étienne Esquirol suggested, beside this, two other primary motives: a lack of courage to commit suicide and the wish to reach another life with the object of their affection.10 The latter motive was not defined any further by Esquirol. Not mentioned by Esquirol, however, was one motive that stood out from the others: the avoidance of corporal punishment. Prisoners and members of the armed forces lived in cultures where frequent corporal punishment was the norm, and some found it better to die than be subject to it. Soldiers, for example, might commit a murder in order to be executed instead of facing a feared corporal punishment, such as running the gauntlet.11 It has also occurred that soldiers condemned to death refused to ask for mercy for fear of being reprieved to a corporal punishment.12 As late as 1856 a prisoner in Waldheim responded to repeated corporal punishment by requesting that he instead should be executed.13 7 Bellany 2008 p 42. 8 See, for example, Andersson 1988, p 103 sqq and cases cited there; Report of the Capital Punishment Commission 1866, p 173 sq. 9 See e g Krogh 2012 p 45 sq and Bergman 2010 p 137 sqq, 148 sqq. 10 Esquirol 1838II:341. 11 See also Krogh 2012 p 31 and Byard and Maxwell Stewart 2018 p 1147. 12 See e g Charpentier 1969 p 112 sqq. 13 Bretschneider 2015 p 282 sq. 22
fell well short of gender role expectations and, through a series of complex and sometimes contradictory processes, fell victim to cultural misogyny in general and judicial misogyny in particular. introduction Some have also suggested that the use of shaming punishments resulted in women killing their illegitimate children.14 Deterrence can backfire. The military and the navy in some respects lived in a separate world from the public. They were generally subject to special penal codes and law courts. Prison regimes were also separated and harsh, with corporal punishment and other penalties. Prisoners, soldiers, and sailors lived at close quarters, often in direct proximity to places of execution such as prison yards, further alienating these groups from society. What happened among sailors, soldiers, and prisoners was invisible to the outside world. The crimes in focus here they committed may well have had less influence on the wider debate than the same crimes in the general population. In the nineteenth century the presence of women at executions was increasingly questioned.15 Also the women were a group somewhat separated from the generally male population of legislators and executors of the law. In a situation comparable to many soldiers and prisoners, women lacked fundamental control of their own circumstances. This was especially true of women in domestic service. Annette Ballinger, in a study of women executed in England and Wales between 1900 and 1955, argues that they all Yet even though in the nineteenth and twentieth centuries voices were raised against the execution of women in the abstract, these ideas did not apply for women whose womanhood was called into question by their acts of violence or even interest in murder.16 Women who had killed were strange creatures, not from another universe, but from far, far away. The danger, however, did not start with murder. Any woman whose actions challenged the dominant ideal of womanhood challenged 14 See e gRDPr 1740-41 p 113. 15 See e g Bergman 2001 p 98 sqq. 16 Ballinger 2000 p 2 sq (quotation p 3), Gregory 2012 p 88 sq. 23
introduction society. The unnaturalness of female criminals had been a standard trope during at least the early modern period.17 The problem with studying motive is that we hardly ever know what the accused actually said. This is illustrated by a well-documented case from 1845 concerning Maria Johansdotter from the parish of Södra Sandsjö in Sweden, where the draft and final versions of the court record differs, sometimes substantially, in the rendering of her statement.18 Even when we do have their words, there may be little reliable information about motive, as it was not uncommon in trials to ask leading questions and to almost force the accused to answer.19 Similarly, judges and others varied considerably in their interest in searching out and documenting the accused’s motives, though it may have increased due to public debate and legislation, making it easier to establish the details of later cases than the probably more frequent earlier cases. That the criminal cases discussed here are almost exclusively taken from the literature increases the risk for factual inaccuracy and opens for serious critique.20 However, focusing not on crime or motive, but instead on interpretation and reaction, should reduce the risk. Discussing singular cases at all can be motivated by the diverse approaches to their possible existence, interpretations, and reactions to them in different countries. A key uncertainty concerns the willingness of perpetrators to reveal their motives. They might have something to gain by concealment, especially once the problem with these crimes had been noticed. Inflicting an especially hideous punishment on those who had committed a crime in the hope of being executed could be a strong impediment not to reveal their true motive, the risk of not being executed at all being even great17 Ballinger 2002 p 47, Kilday 2007 p 19 sqq, Stuart 2023 p 205: ”Undoubtedly, Koenig’s violation of gender norms contributed to her death sentence.” 18 Record 2 June 1845 p 11 sq, 17 AIa:132 Konga häradsrätts arkiv VaLA, draft of record 2 June 1845 (used as cover) FIa:162 Konga häradsrätts arkiv VaLA. Concerning the wider problem of the relation between the court documents and the reality they claim to describe see e g Nilsson 2017 p 5 note 8 while Bastien 2010 discusses our possible knowledge of the utterances of the condemned. 19 Neumeyer 2002 p 50 sq. 20 See e g Reeh and Hemmingsen 2018 p 114 sq. 24
introduction er.Perhaps such ideas influenced those who murdered a spouse or a child, or a neighbour’s child, and then refused to apply for clemency.21 Even though the question of motive is central to this study, the execution, hoped for and sometimes carried out, was the most set of limits. Things were more blurred than appears at first glance, however. For example, in Vienna in 1812 a man tried a shortcut. He invited the public executioner to his flat. When his guest had arrived, he locked the door, produced a gun, and made a proposal. Either the executioner – paid, naturally – would execute his host or he himself would be shot. The executioner answered that if he wanted to die he had to subject himself to the same treatment as any other criminal, and that meant being bound ready for execution. His host agreed, whereupon the executioner tied his hands and delivered him to the police.22 As he wanted to be executed, this case belongs with the others in this study, but how to judge the cases where someone wanted to be killed, but not by a public executioner? For practical reasons, I have excluded instances of people who wanted to die but were unwilling to commit suicide, and instead persuaded or paid someone to kill them.23 All these uncertainties bring us to an almost impossible question. How important was the execution? Was it simply a fast means to death and eternity? Or was it in itself crucial for the choices of people who seemingly aspired to be executed? Was their longing for death also a longing for the noose, the sword, the axe, or some other method used? One result of these and all other uncertainties is that this study does not contain a specific chapter on the criminals. Beyond the fundamental motive and limited knowledge of the sometime significant higher numbers of a particular gender, age, or occupation, there is not much we can generalise about them. Easier to identify and study than the motives of those seeking or welcoming their own execution, however, are the contemporary interpreta21 See e g statsrådsprotokoll i justitieärende 27 February 1830NJrARAS, högsta domstolens protokoll 2May 1831NJrARAS, statsrådsprotokoll i justitieärende 27 December 1832NJrA RAS. See also Locard 1939 col 414. 22 Osiander 1813 p 97 sq. 23 On such cases see Georget 1825 p 121 sqq. 25
Tout se joue au dernier moment. Tout peut être sauvé ou perdu dans les ultimes instants de la vie. Cela vaut même pour les criminels. D’ailleurs nous sommes tous, plus au moins, des criminels. Nous sommes tous des condamnés à mort, en raison du péché originel. Celui qui va être exécuté ne diffère donc pas fondamentalement des autres pécheurs.25 introduction tions and reactions to the crime, where its existence as a crime followed on from the views of those who identified it. Any crime where the longing to be executed was part of its definition, there must be an interest in its origin, end, and limits and even the circumstances under which it was constructed as a crime. The focus is thus not the true motives of the perpetrators, but their motives as perceived by others. By prioritising motive as it was interpreted and reacted to at the time, the number of crimes and the temporal and geographical differences are not a central concern, other than when crimes were influenced by the circumstances of legislation and practice. Statistics and crime figures are therefore rare in this study. The ideas behind the motives for the crimes – their context and history – cannot be ignored.Although this study to a large extent concerns countries with predominantly Christian confessors, crimes in order to be executed were not limited to any one confession or religion, nor was there any obvious dogmatic reason why it should be so. Perhaps the most appropriate perspective to apply to the question should be neither theological nor legal, but cultural, understood at its loosest including theology and law, in which psychiatry could be an aspect of the story. If so, it would not only be an all-embracing perspective, but a changing one too. For example, around 1750 theology became less important in judgements and mercy in Denmark.24 The theological aspects of these discussions might also have a period when its importance increased before it retreated, however. Jean Delumeau has expressed a change in the late medieval period from the position that the condemned would probably be a citizen of hell to: 24 Reeh 2017 p 124. 25 ’Everything is at stake at the final moment. Everybody can be saved or lost in the last instants of life. So is it for criminals too. Further, we are all more or less criminal. We are all 26
introduction Adriano Prosperi paints a similar picture:”The great theatre of death by execution was performed in city squares without any certainty regarding the outcome. Two lives were at stake: that of the body and that of the soul.”26 Thus, the interest of society in the salvation of the condemned probably grew. ’Legislation and practice’ are a way to describe the history of penal reality. New laws, however, are easier to examine than small differences in how they were adapted over time. The discussion of the legislation inevitably requires more space that perhaps its real relationship to practice would warrant; it is well known, though, that eventually possible capital sentences and executions for many crimes in many countries came not to occur or be carried out because of the way practices developed. A perspective not to be neglected is that around the time we identify as harbouring the Enlightenment the meaning and content of crime and punishment were changing. The emerging principle of legality is one important alteration occurring during this period.27 Capital and corporal punishment became increasingly problematic, while other punishments such as imprisonment grew in scope and importance. These changes eventually manifested themselves clearly at public executions. Which alongside fundamental motives such as seeking death or heaven or both, itself begs the question of the role of the execution. Was it a necessity for someone who sought execution by a capital crime, an inspiration, or perhaps astage on which they were to act and be seen? Although the present book concerns the history of crimes defined by the wish to be executed, this and the relationship between legislation and praxis bound the histories of the crimes to the history of the executions. Thus, the ways in which contemporaries interpreted executions will be part of this study. Important to note is that for a long time executions were not a single action, for example in France before the revolution there existed five difcondemned to death, because of original sin. The person who will be executed therefore does not differ fundamentally from other sinners.’ Delumeau 1982 p 1 sq. 26 Prosperi 2008 p 99. 27 Concerning the principle of legality and its forthcoming see e g Häthén 2004 p 11, 127, 141, 183. 27
introduction ferent death penalties – five methods of execution.28 Esther Cohen interestingly sees often similar methods of execution for the same crime over large parts of Europe as firmly grounded in symbolism and thereby ”tools of communication between ruler and ruled”.29 Most countries were slow to move to only one form of executions. Hence, probably the last woman in Sweden to be beheaded and then burnt was Maria Johansdotter, who was executed in Växjö on 3 July 1839.30 Multistage or especially painful forms of execution or using methods such as drowning in the sack or being torn apart by horses sent a message about the nature of the execution. These forms can be called qualified executions. Exactly where the boundary ran between an ordinary execution and a qualified one is debatable. Roland Borgards, for example, sees a difference in the added degrees of pain in what he calls a qualified execution. Pain is according to him the added quality.31 For example humiliation or degradation could also be added. If such additions should be called qualifications is a question of limitation not of interest here. Dwight Conquergood makes the illuminating point that ”The death penalty cannot be understood simply as a matter of public policy debate or an aspect of criminology, apart from what it is pre-eminently: performance.”32 Public executions were nothing if not symbolic actions. Any wish to deprive execution of its symbolic character was dismissed as unreasonable, and at most another symbolic message was conveyed. Although the actions and symbols were constantly changing, their existence and the messages they conveyed were continual. The actions most often had both spiritual and civil ends, such as retribution or deterrence. The dual aim was plain in a late fifteenth–century instruction for comforters in Bologna. As lay members of religious confraternities who helped steady criminals’ nerves before and prepare them for the execution, comforters were directed to use suitable means to distract the criminal during 28 Porret 2012 p 29 sq. 29 Cohen 1989 p 410 sqq (quotation p 410). 30 Bergman 2011a p 549. 31 Borgards 2002 p 77. 32 Conquergood 2002 p 342. 28
introduction the reading of the sentence so that there would be no protests. This is motivated by the need for the condemned to focus on their spiritual preparation and by the understanding of the sentence as true.33 Thus, the criminal would maintain a spiritually beneficial calm, following the example of Christ and the martyrs, and the word of the authorities would not be challenged.34 The clear religious connotations of the eternal fate of the executed was the shared paramount concern of the secular and ecclesiastical authorities.Pascal Bastien,studying the executions in Paris and London between 1500 and 1800, has this to say about executions in Western Europe: ”La peine de mort porte un objectif bien précis: assurer le salut par l’excès. Excès de violence, de vengeance et de morale.”35 Elsewhere I have called this ”a system sustained by state and church”.36 It was first constructed in the late Middle Ages and its development continued until it was demolished; thus, it existed at our point of departure, the execution of preEnlightenment times. In the Enlightenment, the system was officially, if only gradually, dismantled, although many still held it in high esteem.37 A widening gulf emerged between the theological and judicial perspectives, with the latter increasingly being seen, at least by the officials of the state,as more important, even when life, death, and eternal salvation was at stake.38 The church and the clergy had thus a relationship to the authorities, but they also had a relationship to those with less or no power. They were, at least when everything functioned, in many respects mediators in their society.39 33 The Bologna Comforters’ Manual 2008 p 249, 271 sq, Falvey 1991 p 42. 34 The Bologna Comforters’ Manual 2008 p 213, 242, see also Nordberg 1993 p 236 sq, Falvey 1991 p 38. 35 Bastien 2011 p 10. ’The penalty of death had a specific motive: to ensure salvation through excess. Excess of violence, revenge, and moral.’ 36 Bergman 2011b p 113. 37 Merback 1999 p 128, Bergman 2001 p 96 sqq, Bergman 2011b p 152 sqq. 38 On the emerging difference between theological and judicial perspectives see e g Bergman 1996 p 196 sqq and Bergman 2011b p 143 sqq. In France, for example, Anne Carol notes how theological perspectives such as conversion was much more frequently mentioned in official reports up to the 1870’s than later, Carol 2017 p 105 sq. 39 Rousseaux 2005 p 123, see also Bergman 1996 p 133 sq. 29
introduction The theological aspects of execution were especially conspicuous before the deliberately secularising ideas, so manifest in the French Revolution, gained a greater and eventually decisive influence on the executions in many countries. Those who saw the role of capital punishment mainly as deterrence increasingly fought against all other possible interpretations, whether of the execution or of any and everyone present. When describing the history of execution in European countries in recent centuries, one cannot but notice the frequent attempts of some states to wheel it away from theological interpretations. There are more perspectives besides these in the study of executions. Executions can also be seen as expressions of power and the body of the executed seen as communicating the message of the state.40 However, the entire idea of a duality of the more theological, spiritual and secular, legal perspectives on execution is questioned by Paul Friedland, who sees several forms of penalties being carried out – not only those resulting in death – as secular expiation, penance, and Passion Plays. Friedland’s explanation is ingenious and interesting, but also problematic in his modern, enlightened puzzlement at aspects of premodern punishment.41 Theological ideas are now as then to a large extent advocated in sermons and speeches of similar type. Important when using material referring to them and other utterances are to remember that the written word can differ considerably from what was said, and the spoken word from what listeners heard and remembered. In Christian theology for many a fundamental idea with many variations in the context of these crimes is that the relationship someone has with God at the moment of death is decisive for their eternal fate – salvation or damnation, heaven or hell. Much of the importance of extreme unction and final Communion, not least in popular belief, probably derived from this idea. Yet it was also the source of a longing; a longing for the power to control and decide that moment of death as auspiciously as possible. In late sixteenth–century Italy, a person about to be executed 40 Borgards 2002 p 85 sq. On the struggle concerning the interpretation of executions in postreformation England see e g Lake and Questier 2002 p 231 sqq. 41 Friedland 2003 esp p 312 sqq. 30
Whereas the Catholic tradition emphasized that the state of the soul was determined at the moment of death, the Protestant tradition – witnessed in a work such as William Perkins, Salve for a Sicke Man(1595) – stressed more the art of living so as to reach a blessed end.43 introduction could be consoled with the thought that they knew exactly when death would come and so could be flawlessly prepared.42 However, it was not without its adversaries, notably in the Anglophone world, as is well attested by Bruce Hindmarsh: Hindmarsh here uses the English dichotomy between Catholic and Protestant, which in differences such as the lack of the Lutheran perspective reflects a somewhat different world than on the Continent. As will be seen, until the later eighteenth century it was rare to find such ’Protestant’ ideas in Lutheran and most Reformed theology outside Britain. Lingering in the background, though, was also abhorrence for suicide in almost every Christian theology, even if exceptions could be found where the road to heaven could be taken through suicide or murder. Two theological movements, particularly on the non-Catholic side, are of central importance to this book: Pietism and Neology (the latter also called natural theology or rationalism). Though not exact, to say Neology was theology’s Enlightenment is not wrong. Although the two movements were different, they were still related, with Pietism being one root of Neology. They arguably both worked to release religion or faith from the bonds of the Church, or, as Regin Prenter puts it, to replace the word of God and faith by experience or reason.44 In both movements there was atendency to emphasise the role of the individual and give primacy to the demands either of the faith or of morals. Of course, this had been true of earlier spirituality too, but not as consistently or so emphatically. There were many differences between a theology somewhere on a pietistic track and a theology or a philosophy influenced by the Enlightenment. Yet there was also consensus on a vital point: the confidence and 42 Edgerton 2003 p 256. 43 Hindmarsh 2012 p 256. 44 Bender 1882 p 4, 12 sq, Prenter 1971 p 186. 31
introduction trust in God and his providence for individual salvation was strangely weak compared to a more orthodox view, at least among Lutherans.45 The question: ”How am I to be saved?” – tends among pietists and neologians to in a substantial part to lead the eyes to the individual. Although the theologies differ on this point – are we to look for the quality of the faith of the individual and the closeness to God in spiritual life or are we to look at the moral righteousness through a well-handled trusteeship also known as life – the result is the same. It is in the individual signs of salvation is to be sought. Life in one aspect becomes a struggle for salvation, and if salvation is taken seriously there is not that much trust and peace in God as we might imagine. The struggle goes on and the result at the end of the game stands. How prosperous would it then be to know of that moment in advance, and be able to prepare for it? Probably some readers will think that this study contains too much theological material and questions. The excess can be defended by it often being underrepresented in studies of this kind and that theology, the Church, and salvation were still of great interest for those not swayed by the Enlightenment, and who for example generally not regarded suicide a solution to a devastating situation. For many, at least in situations of high tension and existential doubt, some kind of spirituality would probably have been significant. In spirituality martyrs had a role, widely differing between churches and groups, but always relevant for executions and their interpretation. Preparation for execution was a process that could be made up of many steps, generally designed to deliver the hope, the acts, and the ending many criminals longed for; it was thus of great interest for those adhering to a faith with transcendent hope, longing that hope would be realised soon. Many historical studies, including those dealing with crime and punishment, are devoid of any theology or treat it in a limited fashion if abso45 From an Anglophone perspective Bruce Hindmarsh describes a similar development as a ”debate about the anthropocentric and theocentric poles” and concludes: ”The seventeenth century witnessed a significant anthropocentric turn as theology increasingly concerned itself with the sequencing of salvation and mapped this understanding onto experience as an order of conversion.” Hindmarsch 2012 p 15. 32
introduction lutely necessary. Randall McGowen notes how theological views are treated by historians of criminal justice: ”They tend to treat them as platitudes, as a verbal formula that casts a veil over the real operation of justice.”46 Similar positions can be found not only in research, but also in the sources. Limited questions also result in limited answers. Sources and research starting from an often secularised understanding of society, morals, and law, while theological factors are mostly ignored, will also be discussed.47 Therefore to some extent, but not more, the position of theological perspectives in this study is a reaction to how these perspectives have been treated or not treated in some earlier studies. In addressing these questions, there is help to be found in an idea launched by Inger Hammar in her research. In historical research she found an understanding she called religion blindness. Fundamentally such a point of view is immanent and often sees religion as something private and not publicly relevant. Therefore, analysis on such a ground has focused more on motives and ideas inside this world rather than of the next.48 Fundamental for this is the idea, dominating in many fields since the mid-twentieth century, that religion became private and lost all its public roles and therefore interest – an overwhelming secularisation. Theology has thus been treated as not fully scientific or not fully suitable for historical studies, whether from a clear atheistic position or not, and these ideas have spread to much research.49 A greater understanding of orthodox or traditional approaches to the theological factors promises to be profitable, especially in their contrast to the secularising ideas of strands of the Enlightenment. Another possible objection against the value of studying this problem at all could be to see it as peripheral and as a subject far from central themes in the study of society and its history. Andrea Zorzi has defended the study of the history of capital punishment as a place where the history 46 McGowen 1988 p 64. 47 See e g Gudenrath 1792. 48 Hammar 1998 particularly p 4 sqq, Hammar 1999 p 32. This subject came to be studied and debated much in Nordic research in the following years, see e g Werner 2012 p 3. 49 Jansson and Falk 2017. 33
introduction of law and repression, public ritual, social discipline, death practices, literature, and art meet.50 To these subjects we can here add theology beyond liturgy and also psychiatry. The questions discussed in this study are in many ways universal, but the ambitions here are more limited. Geographically, examples of different aspects are taken from various parts of Europe and a few European colonies, but dominating are some states in the north – Sweden, Denmark, and some German states. It was a region of a shared culture and, concerning the Lutheran milieu, theology. Many cases are known and have been discussed, and the preponderance of the work already done is on these countries. When it came to the legal and judicial culture, however, there were substantial differences between the Nordic and German states,because of for example the stronger position of Roman law in Germany and the larger role accorded non-professionals in passing judgement in Swedish courts. Although no significant difference is to be found between the Nordic and German states in regard to which point in time the liturgical and especially the clerical presence and actions were conceived as a problem it is clear that radical measures were considered and effected earlier in the German states. A possible explanation has its roots in the confessional situation of coexistence and conflicts in Germany. Hans Medick has written about how in the seventeenth century confessional conflicts could take the form of controlling the opposing confession, degrading it and its power in the public area.51 Thus attacks on and prohibition of earlier accepted religious practices in many parts of Germany were unexceptional. A question still not discussed, however, someone may ask, is exactly what period of time is studied here? Julia Smith has made a thoughtful comment on the question of time in history: ”Periodization can be the bane of the historian.”Smith also in her book, studying much of Europe in the centuries after the fall of Rome and thereby the western empire, 50 Zorzi 2007 p 49. 51 Medick 2006 p 372 sq. 34
introduction offers a model well worth following: ”This tapestry does not have neatly hemmed edges: in both geographical and chronological terms they are ragged, and deliberately so.”52 With this background the problem of an exact period of years in this study will now be commented on. Interest, understanding, and interpretation are important words that have been used above, but what about a time where the interest in the yet-to-be-defined, many of the crimes of our time were negligible, and thus neither understanding nor interpretation of such a crime existed? One might wonder, for example, about an event noted from the sixth century and the diocese of Mérida in Spain. The hermit and later abbot Nanctus was given an estate by the king Leovigild. At the estate, Nanctus behaved in an inappropriate manner, according to the slaves there. He herded his sheep himself, he was unkempt, and he did not dress in a suitable manner. Therefore, they decided to kill him, despite risking their own lives. It seems their view was it was better to die than serve such a master.53 We cannot today know if they hoped to be killed or if his unacceptable behaviour really was their motive; we can be fairly certain, though, that the question was not asked at the time. In time, the more the question were asked, the easier it is to find cases and discussions. This is one reason that the study of these crimes can only start rather late in history. Background far, far back in history will be brought into the picture and cases starting in late sixteenth and seventeenth centuries will be mentioned. The seventeenth–century cases however also underline the question of where in history this problem exists. Because then the cases only have been found through studies of court material by other researchers. I have not found them in legislation or any related texts. Even if it might be mentioned somewhere it is only in the eighteenth century that the crime starts being defined and thus starts to exist. The latter half of the eighteenth century and the beginning of the nineteenth century is a period when crimes, legislation and debate often are 52 Smith 2005 p 1, 295. 53 Harrison 1999 p 211 sq, Smith 2005 p 174. 35
To protect their people from wanton and senseless crimes, legislators everywhere should vote against implementation of the death penalty. If they do not, the human cost could be extremely high.55 introduction in a broader focus. Then it all declines. Some cases in the latter part of the nineteenth century are raised, though they were becoming invisible in the legislation and debate, but this history does not end there. Even during the early nineteenth century, the story about a murder of this type could open with the claim that courts in the last few years had encountered a new kind of homicide, lacking all traditional motives despite that the culprit always was found. Often murderers killed strangers for motives that are lost to us.54 Assertions that a crime of this type was unknown and therefore something probably new occurred were made at intervals, especially where no new legislation or extensive debate had occurred recently. This is clearly a historical study as the more modern cases are not included. In reality they exist. Katherine van Wormer in an article has listed least eighteen people in the modern USA that committed murder in order to be executed. In a later article together with Chuk Odiak the number is said to have risen to twentytwo. Van Wormer's conclusion is to the point: And if one leaves the semi-orderly arena of the execution and only consider those acting like they were seeking to be killed by the police in a confrontation, one must wonder if they are driven by an interest of being killed or just frustration or some other unknown reason or feeling. While this study is mostly thematic in arrangement, chronology is also used sometimes. One example is that in the fourth chapter the order German states, Denmark, and Sweden is due to the chronological order of the earliest relevant legislation. Generally, this study is something of a patchwork, connecting examples from several countries and a few centuries. To make a full study of all aspects has not and will probably not be possible. Therefore, especially 54 Causes criminelles célèbres 1827 p 204. 55 Wormer 1995 (quotation p 8), Wormer and Odiak 1999, see also Reeh and Hemmingsen 2018p132. 36
The vast conceptual void between the law and the missing discipline of forensic psychiatry during the eighteenth century leaves space for academics of later times to consider or construct certain general concepts or myths about how this void was filled at the time, e.g. pietistic excesses, magical world views and an inexplicable, morbid attraction to the dramatic staging of executions. Our investigation of individual court cases reveals no trace of these or other mythologies.56 introduction the cases referred to, but also debate and legislation, must largely be used and seen as illustratively, without claiming to be a complete study of everything of relevance. The cases mentioned has been found through literature and printed sources, through archival studies, and more or less through chance. Several cases described primarily have been chosen because they are from areas where earlier modern research has rarely studied them. The aim has been that in the patchwork something of a reasonable and credible picture will emerge. Also, the perspective of academic subjects leaves us with something of a patchwork. Fundamental is the history of a crime, but this study also reaches into at least the histories of law and theology. A perspective focusing on academics and ideas also reveals a specific problem as much of the modern research that looks for explanations is based on positions that can be found hundreds of years ago in past research and debate. Modern research reasonably should be freer from the ideas of the Enlightenment. In trying to launch such a novel approach, Tine Reeh and Ralf Hemmingsen question earlier research and in some respect the premises of this study: However, Krogh, being the main object for their critique, has answered them and for example stated that he has not used the word magic and that Reeh and Hemmingsen only have studied twenty-one of his eightythree cases from Copenhagen. He also sees their method, only using the court records, as problematic because of the possible variations in the 56 Reeh and Hemmingsen 2018 p 132. 57 Krogh 2020. 37
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