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In 1848, the Austrian Empire was ruled by the absolutist equivalent of a lame-duck emperor. In March, a peaceful demand for civil rights escalated into a full-fledged revolution. The emperor and his advisors were forced to flee the capital city of Vienna.
It was a strange situation. An emperor ruled in God’s name, in a country where just about everyone accepted his divine right to rule and the fundamental superiority of members of the ruling dynasty and, beyond them, aristocratic elites, over other mere mortals.
Emperor Ferdinand I was 54 years old at the time when the revolt started. He was a kindly but sickly man who suffered from epilepsy, hydrocephalus, and a speech impediment. His father, fearing he would be incapable of effective rule by himself, had provided him with a council of three regents. Ferdinand’s many advisors notwithstanding, he was still an absolute ruler. And one of his rights and duties was to decide, personally, the fate of each and every person in his empire who was sentenced to death in a court of law.
Murder convictions, in old Austria, came with automatic death sentences. But those death sentences were not automatically carried out. The emperor signed every death sentence after studying a report from the minister of justice that provided the necessary background information on the case. The minister of justice would conclude his reports with a recommendation: either clemency, commuting the death sentence to a prison term, or execution, “letting justice run its course.”
These reports could run quite long, so the emperor’s staff would provide summaries, including the opinions of the three courts that had weighed in on capital cases before they came across his desk: the court of first instance, the appellate court, and the supreme court. These briefs informed him of any internal disagreements among the judges and of the recommendation made by the minister of justice, the most powerful voice influencing the emperor in these matters.
And then these reports waited for the emperor’s signature, typically for no more than a day or two. Ultimately, the decision was his and his alone.
When the revolutionaries demanded constitutions and representation, the emperor and his advisors suspected that his sole authority over the life and death of these convicts might come to an end. However, capital punishment, unlike many of a ruler’s decisions, is irreversible. Here was a chance for the emperor to guarantee that his sense of justice would be permanent.
But from March to December of 1848, the emperor ordered no executions at all. Every death-row convict whose case crossed his desk evaded the gallows.
In the revolutionary year of 1848, the emperor’s desk moved around quite a bit. Because the emperor was relatively popular, unlike most of his ministers, Ferdinand was able to stay in Vienna through May – several months after the capital became unsafe for the unpopular Chancellor Clemens von Metternich. In June, however, the imperial family had to retreat to Innsbruck – and death penalty cases followed Ferdinand there for a few weeks.
The nadir of the emperor’s relevance may have been reached in July 1848, when his uncle, the Archduke Johann, who had gone to Vienna to represent the imperial family, briefly took over the role of reviewing death penalty cases. In August, Ferdinand was able to return to the capital, first to the imperial residence of the Hofburg and then to the suburban summer palace of Schönbrunn. In the fall, however, he retreated again, this time to Olmütz, in far-away Moravia.
But in March of 1848, all that flight, if not the fear, lay in the future. Revolutionary fervor was not, after all, immediately directed against the emperor’s person. The insurgents had demanded not an end to his rule, but rather the introduction of freedom of the press, a constitution, perhaps tax reform.
On March 15, the emperor rode in a carriage through the city in an effort to calm the populace; he was greeted with cheers and hurrahs, and, deeply moved, kept repeating over and over, “I promise you everything.”
Later that day, he issued a proclamation promising less than everything, but more than anyone actually expected: freedom of the press, as well as the convening of “delegates from all the provincial estates … with a view of establishing the Constitution of the Fatherland which we have resolved to establish.”
Meanwhile, the business of running the empire had to continue. And of course, there were death sentences that had to be reviewed.
The first death sentence to cross the emperor’s desk after the revolution came in May 1848 – it was a typical case for that country and that era, like countless that would come before Ferdinand’s successor over the next seven decades. In the Kingdom of Galicia (which is now split between Poland and Ukraine, but had been part of the Austrian empire since the late eighteenth century), Helene Dyganiszyn had been driven by extreme poverty to kill her newborn daughter. The automatic sentence for infanticide, if the mother was over the age of 20 and in her right mind, was death, but in fact, women were never executed for infanticide in imperial Austria. It was all too easy for ministers of justice to conclude that women were not fully responsible for actions they took in the emotionally overwrought condition created by the combination of childbirth and extreme poverty.
In Dyganiszyn’s case, the minister of justice supported the courts’ call for mercy. The emperor reviewed the mitigating circumstances: the mother’s extreme poverty; her inability to find any work while burdened with an infant; her previously clean record; the spontaneous desperation (as opposed to calculated planning) that led to the deed; and her remorseful confession. He was told as well of the aggravating circumstances (the child was legitimate). The emperor commuted Helene Dyganiszyn’s death sentence to eight years in prison.
There were a few other cases that summer that, like Dyganiszyn’s, were handled as similar cases had been in the past. The revolution did not change the likelihood that a convict sentenced to death would not, in the end, be executed. Like his father before him, Ferdinand used his control over the death penalty more frequently to commend mercy than to demand justice (if an extended term in Austria’s notorious prisons could be deemed merciful).
Between 1803, when the death penalty was reintroduced after having been first abolished in Austria in the 1780s, and 1848, 1304 convicts were sentenced to death in “ordinary proceedings,” and of those 1304, 856, or roughly two-thirds, were pardoned. Two of the 121 people convicted of high treason were executed (1.6%). Eighteen of the 84 who had been sentenced for arson, 421 of the 911 sentenced for murder, and none of the 76 convicted of forging public bonds were executed. (Unlike in Great Britain, which imposed death sentences for innumerable property crimes, including poaching, there were no other capital crimes in imperial Austria.)
Like Helene Dyganiszyn, Josefa Polczynska received eight years for infanticide. Karl Szybinski got fifteen years for murder; the arsonist Wenzel Poradek and the convicted murderers Jakob and Gertrud Jakubczyk, Franz Benda, Joseph Grabowski, Peter Kozak – all these people were recommended to the emperor for mercy and their sentences were commuted according to customary procedures. And custom, in Austria in the middle of the nineteenth century, favored leniency.
The emperor and his minister of justice had presumably never once gone to bed hungry, but they knew all too well that they lived in a world where, for millions of less fortunate Europeans, starvation lurked behind one unhappy turn of fate – an illness, an injury, an untimely pregnancy. Josepha Polczynska murdered her two-year-old son because she had nothing to feed him and could no longer bear to hear him beg for food. Her husband had convinced her to undertake this dreadful act but had fled the scene and emigrated before he could be arrested.
Polczynska showed little remorse for her deed – but the minister of justice speculated that her indifference may have been the result of the extreme hunger and poverty that left her a wreck of a human being. As evidence of her poverty, witnesses reported she had eaten a dog and cooked grass. The minister of justice pointed to the “bitterest misery and helplessness and the fair-minded appreciation of the spiritual dull-wittedness to which people in such a situation are reduced.” Her sentence was commuted from death to eight years in prison.
But then on May 2, about six weeks after the first stirrings of revolution in Vienna, the emperor reviewed a capital case that showed just how deeply the revolution had transformed the way the emperor’s closest advisors understood legitimate rule.
The file for Franz Salat that the minister of justice presented to the emperor lacked all the usual details. It did not provide any of the usual personal information – neither his age nor his religion, not his occupation or habits or character. It did not provide any information about Salat’s victim or victims, or the circumstances of the crime. There was, apparently, nothing relevant to say beyond that Franz Salat came from Oberkaunitz in Moravia, that he had committed robbery and murder, and that the courts had found no grounds for mercy. And yet, the minister of justice noted, “Your Majesty could hardly be inclined to allow a death sentence to be carried out, before a decision is reached regarding the perpetuation of the death penalty in the new criminal legislation in consultation with the Reichstag.”
The phrase “in consultation with the Reichstag” sounded simpler than it was. The Reichstag, or imperial diet, did not yet exist in May 1848. In April, the emperor’s government, under pressure from the revolutionaries, had hastily written a provisional constitution that foresaw the creation of a new parliament. That parliament, once convened, was expected to amend the constitution as well as the procedures for its own members’ future election. And the new Reichstag would be convened in July.
The extent to which that Reichstag might attempt to amend the constitution and the structure of government in Austria was unforeseeable. One radical newspaper founded in March 1848 called for the creation of a German Republic (by definition, a state with no monarch) with the appointment of the Austrian emperor, Ferdinand, as its president. For whatever reason, the kindly-if-simple emperor remained popular even as his ministers were, one after another, driven out of office through public pressure – one, the unfortunate minister of war, would be hanged from a lamp-post in an outburst of violence in October. The same rowdy crowds that would “serenade” cabinet members overnight in shows of displeasure hinting at the ever-present potential for violence would tiptoe past the imperial palace lest they wake the emperor himself, according to contemporary reports.
Perhaps Minister of Justice Sommaruga, himself a replacement for the first post-revolutionary minister of justice, whom angry crowds had already hounded out of office, feared that the execution of one of the emperor’s subjects would endanger his presumably fragile popularity. Perhaps Sommaruga was simply looking for an excuse to return to the brief period when the death penalty had been abolished in Austria in a fit of eighteenth-century Enlightenment reform.
Whatever his reason, by recommending that the emperor “could hardly be inclined” to allow an execution without the support of a Reichstag that had been announced but not convened, Sommaruga was effectively informing the emperor that he no longer had the moral authority to order a death sentence to be carried out.
A month later, Sommaruga went even further: on the emperor’s behalf, he publicly proclaimed in the Wiener Zeitung (Viennese Gazette) on June 2, 1848 “that his majesty is not inclined to allow a death sentence to be carried out for non-political crimes that are currently punishable by death – either currently or before the constitutional legislation regarding the retention or abolition of the death penalty has been decided.” It was enough, apparently, to know that reform might come.
It’s worth stopping for a moment to consider that the emperor who was being told to wait to see what a potential parliament might say about his authority to oversee life-and-death decisions had been told from the very moment of his birth that he was destined to rule, and that he ruled by divine right. He was nevertheless, at this moment, able to understand that there was some higher authority, some overseeing witness to right and wrong to which he had to answer and in relation to which his rule was, divine or no, provisional.
And so the emperor commuted Salat’s sentence, not because of any mitigating circumstances, but because it simply was not appropriate for an emperor to order an execution at a moment of transition from one regime to another. For even if the emperor himself stayed in office, his government was changing in unprecedented and unpredictable ways.
What if, upon further reflection, the people and their representatives decided that execution was simply wrong?
To be clear, the minister of justice didn’t abolish the death penalty and he didn’t empower the courts to stop sentencing convicted murderers to death. This was a matter of symbolic importance, as was demonstrated when the court that sentenced the 25-year-old smith from Galicia, Karl “Hadrys” Szybinski, to a prison term had to be corrected: only the emperor himself had the authority to decide that he didn’t have the authority to carry out a death sentence. The announcement in the Wiener Zeitung reflected the emperor’s inclinations, not a renunciation of his rights.
Throughout the summer of 1848 and into the early fall, there were numerous other cases where the minister of justice explicitly recommended that convicts who would have otherwise likely faced execution should receive commuted sentences only because “the plans for the coming change to the law may include the complete abolition of the death penalty, in which case it would be inappropriate to allow an execution in the last hours of the existing legislation.”
In one particularly harrowing case, the appellate court begged the emperor to order the execution be carried out. “Robbery-murders in [Silesia] have multiplied so much recently that it is of the greatest necessity to allow the severity of the law to prevail,” they explained. Here, too, however, the minister of justice repeated the argument he had made to the emperor: that “given the current legislative and popular opinion, it is not entirely improbable that the future Reichstag will completely abolish the death penalty for regular criminal proceedings.”
Similarly, in July, Florian Rubrika, deemed by the courts and the minister to be a remorseless brute, was also sent to prison instead of the gallows because, in the minister’s words, “Your Majesty could hardly be inclined to allow a death sentence to be carried out before the legislative bodies have determined whether to retain or abolish the death penalty.”
Most telling was a case that spanned the pre-revolutionary and post-revolutionary periods. On September 26, 1846, Alessandro Ganelli murdered a watchmaker’s apprentice and stole twenty-seven watches. He was duly sentenced to death before the revolution began and his sentence was approved by the emperor on March 21, 1848. But before he could be executed, on April 1, 1848, the province of Cremona, where Ganelli was imprisoned, rebelled and the Austrian authorities lost control. On the last day of August, 1848, after Cremona was reconquered by the Austrian army, the case was brought before the emperor again, this time with the new recommendation that the order to execute be overturned and that Ganelli receive twenty years in prison instead, for three reasons.
First, once again, Sommaruga’s announcement in the Wiener Zeitung suggested that no executions should take place. Second, “beginning the just barely achieved reoccupation of the revolting provinces with an act of the greatest severity would not conform to Your Majesty’s inborn clemency.” And third, “it would be an act of true cruelty to carry out a death sentence after so much time had passed, especially since [Ganelli], given his confession, could not expect any other penalty, and through no fault of his own, he had to endure this agonizing uncertainty as to his fate for more than six months.” Six months of waking up every day to the expectation it must be one’s last was so cruel, that is, that execution would now be barbaric.
In old Austria, for all its many flaws, the minister of justice insisted that letting human beings languish for months or years on end with a death sentence hanging over their heads was too cruel to contemplate seriously. And so through the spring, summer, and fall of 1848, as the imperial family moved between Vienna and Innsbruck and Olmütz, always a step ahead of violence, the emperor continued to advise clemency as expeditiously as he could.
It is Ganelli’s case that explains why the emperor commuted the death sentences of convicts who would have been executed in any year but 1848, rather than simply waiting to make a decision until the constitutional situation had been settled. For, in the end, the death penalty was not abolished in Austria for another 70 years, in 1919, after another revolution successfully brought the Empire to an end altogether.
In December 1848, Ferdinand abdicated in favor of his eighteen-year-old nephew, Franz Joseph. “God bless you,” Ferdinand said, according to an eyewitness, “be good. It was my pleasure.”
By then, the revolution was coming undone. Counter-revolutionary forces that opposed constitutions and other political reforms had enjoyed a series of military successes and would benefit from even more in 1849. Unlike his uncle Ferdinand, Franz Joseph had not agreed to any constitutions. He had not promised the people of Vienna “everything.” And he would not countenance any diminution of his own authority, through constitutions or otherwise. His assumption of power ushered in a period of neo-absolutism. Which is a different story.
The focus here lies in that moment of uncertainty, that extended moment, from March to December 1848, as the emperor and his closest advisors stood waiting for their rule to end or at least change forever.
The pardons of summer 1848 were, in some cases, about the poverty and desperation that mitigated the moral culpability of the murderers. But in others, they had nothing to do with evaluating the merit of the convicted and everything to do with evaluating the merit of the state that had the power to send them to their deaths.
At stake was a single question: not whether a convict deserved mercy, but whether the state itself was just.
Advisors to the emperor could not evade the judgment of posterity. In the years to come how would they be remembered? How will we be judged by those who come next? Barely audible in this question was something unexpected: a whisper of empathy, not for murderers, but for those coming into power who would bring a different set of sensibilities to justice, mercy, and retribution. And even the mere musing about what those sensibilities might require was enough to stay the executioner’s hand.
For who would want to be remembered for having executed someone in the eleventh hour, when the merits of execution itself were so uncertain? At least that’s how one of Europe’s most infamous autocratic regimes saw it, back in 1848.
Alison Frank Johnson is Professor of History and Chair of the Department of Germanic Languages and Literatures at Harvard University.