THE LAW’S GREATS
Cesare Beccaria:
Fists and Coffee for Those Behind Bars
(1738-1794 A.D.)
“May it please your honors, and you, gentlemen of the jury: I am for the prisoners at the bar, and shall apologize for it only in the words of the marquis Beccaria: ‘If I can but be the instrument of preserving one life; his blessings and tears of transport, shall be sufficient compensation to me for the contempt of all mankind.’”
—JOHN ADAMS, Opening Statement, Rex v. Wemms (1770)
(quoting Beccaria, Of Crimes and Punishments1
Introduction
A relatively short treatise on a limited topic written in Italian, Dei delitti e delle pene (Of Crimes and Punishments), catapulted the twenty-six year old Cesare Beccaria to the forefront of legal history, and earned him the laurels that make him one of the great benefactors of mankind in the area of criminal law and penology. Touted as “the most significant essay on crime and punishment in Western civilization,”2 Beccaria’s Of Crimes and Punishments earned recognition from persons as diverse in sentiment as philosophes such as Voltaire,3 legal scholars such as Blackstone,4 reformers such as Bentham,5 and statesmen such as Catherine the Great, Frederick the Great, and the Emperor Joseph II of Austria.6 Some of Beccaria’s Essay even became law: portions of it were incorporated verbatim into the Declaration of the Rights of Man in 1789.7 Beccaria’s influence was not however limited to the European courts and the intellectual salons of Italy and France.8 Beccaria’s essay had significant and lasting influence on the pragmatic American Founding Fathers—among them Jefferson9 and Adams10—who repeatedly read, copied, and quoted Beccaria’s essay.11
Beccaria’s Life
Cesare Bonesana—Marquis of Beccaria—was born in Milan, Italy, on March 15, 1738, the eldest son of an aristocratic family. Educated at the Collegio Farnesiano in Parma, he was “the product of a Jesuit education,”12 which he later criticized as emotionally stifling and “fanatical” and “servile.”13 Initially a student of mathematics, Beccaria was graduated with a law degree from the University of Pavia in 1758. Beccaria returned to Milan after his studies and came under the influence of the brothers Pietro and Alessandro Verri. Beccaria experienced what he called a “philosophical conversion” reading Montesquieu’s Persian Letters, and began studying political philosophy, concentrating on economics and penology. In 1761, he married Teresa de Blasco, who bore him three children.14 Beccaria became part of the short-lived intellectual and literary circle founded by the Verri brothers named the “Academy of Fists,” (“L’Accademia dei pugni”), the purpose of which was to promote social and economic reform based on the principles of the Enlightenment. In 1762, he published a short pamphlet on monetary reform. He also played part in, and contributed anonymous articles to, the short-lived periodical Il Caffè,15 a vehicle modeled after Joseph Addison’s Spectator designed to promote the movement that has been named the Milanese Enlightenment. It was a boon to the world of law that Pietro Verri assigned to Beccaria the task of researching issues relating to the reform of criminal law and prisons in Milan.16 In response, Beccaria steeped himself in the doctrines of myriad French and English political philosophers—one can see the influence of Hobbes, Helvétius, Hume, Rousseau,17 and others in his work, but he appears to have been particularly attached and most deeply influenced by Montesquieu.18 Beccaria was no mere theorist, however, as he witnessed the barbaric treatment and torture of prisoners first hand, having had access to the Milanese prisons through Alessandro Verri, who held the office of Protector of Prisoners. He began working on his famous essay in March 1763, and completed the manuscript by January 1764. The essay was published anonymously in July 1764, for fear of the hostility it expected to engender among the establishment. When it was received with acclaim among the intelligentsia, however, Beccaria’s authorship was admitted.
Beccaria’s essay enjoyed a “sweeping success,”19 and it was quickly translated into French, English, and other languages and widely disseminated. In response to its publication, the adulatory French philosophes invited him to Paris for a visit. The introverted and uxorious Beccaria did not fit in the Parisian society, however, and quickly returned to his wife in Milan. In 1769, Beccaria accepted a professorship in public economy and commerce in the Palatine School in Milan, and taught there for two years.20 His lectures, which were eventually published in 1804,21 anticipated some of the economic doctrines that are generally credited to Adam Smith and Thomas Malthus. In 1771, Beccaria was appointed to the Supreme Economic Council of Milan, and remained a public official for most of his life, advancing reforms in the area of money, labor relations, grain storage, mining, health care, weights and measures, and public education.22 Though overshadowed by his fame as a penologist, Beccaria’s contribution in the area of economics was equally notable. Beccaria wins high praise from the famous Austrian economist Joseph Schumpeter, who calls Beccaria the Italian Adam Smith, and Adam Smith the Scottish Beccaria.23 After his wife died, Beccaria married Anna Barbó, with whom he had a son. In 1791, Beccaria was appointed a member of the commission for the New Lombard Code by Emperor Joseph II.24 Beccaria died of apoplexy in Milan on November 28, 1794.
Of Crimes and Punishments
Beccaria’s Of Crimes and Punishments was an innovative work. Eschewing any argument based upon revelation or the natural law,25 the essay analyzes criminology and penology based upon a blend of secular Enlightenment philosophies. In the main, it adopts a utilitarian, hedonistic ethic26 combined, though not entirely consistently, with a modified social contract theory.27 Based as it is on utilitarian justifications of punishment, it suffers from the problems associated with that philosophy of punishment.28 It also suffers from the facile optimism of the mechanistic, mathematical, geometric notions of the Enlightenment and displays a certain naïveté.29 But, through all its weaknesses, Beccaria’s essay conveys a sincere humanitarian and enlightened concern for the rights of the accused, the imprisoned, and those condemned to death. His abhorrence of arbitrary rule and equal devotion to the Rule of Law is manifest. Beccaria’s disdain of the practice of judicial torture and capital punishment is one of the most compelling features of the essay. Beccaria’s role in putting a stop to the inhumane and unfortunately then-ubiquitous practice of judicial torture establish him one of the law’s great benefactors. Without question, Beccaria’s essay’s practical effects on the reformation of criminal law and procedure and penology were a boon to mankind. Beccaria’s essay represents the foundational document of the so-called “Classical” school of penology, and deeply influenced the English philosopher, Jeremy Bentham. It is also the original manifesto, as it were, of the movement to abolish capital punishment.
Philosophical Presuppositions
Beccaria’s political philosophy is social contractarian and utilitarian. Laws, Beccaria tells us, are nothing other than “pacts between free men,”30 and justice is “nothing else than the bond required to unite private interests without which they would disperse into the old state of unsociability.”31 Beccaria has a Hobbesian view of the world: man in his original state of nature lived separately, free and independent, but in a state of war. Tiring of war, each man conveyed the minimal portion of his liberty which, aggregated with everyone else’s contributions, represents the sovereignty of the nation. That conveyance of liberty to the sovereign is in an amount, and only in such amount, necessary for the maintenance of the social contract. Man’s self-interest remains, however, and he or she must be prevented from taking back his or her portion of yielded liberty or those of others.32 The criminal law, and the right to punish associated with it, exists to prevent this self-interested individual re-appropriation against the common good, and thereby protect the social contract. Any punishment that exceeds that minimal contribution by the individual, however, is tyrannical: “an abuse, and not justice; a fact, but certainly not a right.”33 His ethics are unapologetically utilitarian and hedonistic, not virtue-based. In the pursuit of the social good, he assumes the mantle of a “cool scrutineer of human nature” able to perform the social calculus of “the greatest happiness of the greatest number.”34
On Torture
“Are torture and instruments of torture, just, and do they attain the ends propounded by law?”35
Beccaria rejected any justification for the imposition of judicially-sponsored torture as a means of obtaining evidence or as a form of punishment. Torture before conviction could not be justified in Beccaria’s eyes. If the subject is innocent, Beccaria argued, it was unjust to punish him by torture. If the subject turned out to be guilty, the torture was punishment in addition to that associated with the crime, and therefore excessive. Moreover, the veracity of any evidence obtained by torture was always suspect because the motive is to avoid the immediate pain and not to tell the truth.36 It tends, additionally, to bear inordinately on the weak—who cannot resist the pain—and favor the strong—who can bear up to the torture.
On Punishment
“What punishment is best suited to a given crime?”37
“Are the same penalties always useful?”38
Beccaria argued that punishment must be strictly defined by written law, which must be general not particular, clear and not obscure, and applicable to all citizens without regard to status.39 Beccaria distinguished between imprisonment and punishment; the latter should be applied only after trial.40 Judicial discretion in the handing out of punishments must be curbed, as it leads to tyrannical and unjust sentences.41 Accordingly, penal laws should be strictly and literally applied; any judicial reliance on the so-called “spirit of the law” is “to allow the dyke of law to be breached by the torrent of opinion,” to allow the law to depend upon the judge’s foibles, including his “good or his bad digestion.”42
Beccaria also addressed the criminal judicial process, analyzing the presumption of innocence, the burden of proof, the weight to be given evidence and the testimony of witnesses, immunity, and proper questioning procedures.43 The trial, as well as an accusations, should be public44 and as speedy as possible without detracting from the defendant’s right to prepare a defense.45
Beccaria rejected any retributive justification for punishment. As Beccaria saw it, punishment could only be rationally justified on preventative grounds alone: to prevent future crimes by the actor (i.e., specific deterrence) and prevent crimes by others (i.e., general deterrence).46 Accordingly, punishments must be in “due proportion to the crime,” and must be only as severe, and no more severe, than necessary to accomplish the purpose of preventing the criminal from committing new crimes and deterring others.47 Beccaria measured the evil in crime by its effect upon the social body, and rejected any role in the intention of the actor, the status of the injured party, or the gravity of the sin.48 In determining the appropriate level of punishment, Beccaria argued for milder, yet certain, punishments, and rejected the use of cruel and unusual punishments as counterproductive.49 It is not the cruelty of the punishment that determines its efficacy in preventing crime, Beccaria argued, but its inevitability.50 In determining the proper punishment, Beccaria adopted a utilitarian calculus:
Based upon this calculus, Beccaria analyzed the harm associated with various crimes, including treason, violence, robbery, and smuggling,52 and their respective punishments, including banishment, the confiscation of goods, and disgrace.53
For Beccaria, punishment must be prompt, because prompt punishment serves to enhance the association of the crime with the punishment.54 “The more prompt the punishment and the sooner it follows the crime, the more just it will be and the more effective.”55 To further enhance the public association with crime and punishment, “wherever possible, punishment should conform to the nature of the crime.”56 Moreover, the punishment must be inevitable, as it is the inevitability, and not the cruelty, of the punishment which effectively deters crime. Because punishments ought to be inevitable and mild, private refusal to press charges and executive clemency and pardon, though merciful, are unnecessary and counterproductive.57 For similar reasons, Beccaria rejected any right to asylum or sanctuary.58
Against Capital Punishment
“Is death a punishment which is really useful, and necessary for the security and good order of society?”59
Beccaria called capital punishment a “useless prodigality of punishment.”60 It was useless, he argued, because it does not serve as a deterrent. It is prodigal—and therefore tyrannical—because it punishes more than is necessary. Moreover, in Beccaria’s social contractarian view, because the sovereignty of the state is the aggregate of yielded freedom to the state, and no person can reasonably yield to another the authority to kill him as such a right is indefeasible, the state has no authority to invoke that punishment.61 Therefore, not only does the state not have a right to put the criminal to death, but in doing so, a state of “war of the nation against the citizen.”62 Beccaria’s views on capital punishment were not shared by most of his contemporaries, and were rejected even by the likes of Voltaire and Kant.63
The Prevention of Crime
“What is the best way of preventing crimes?”64
“It is better to prevent crimes than to punish them,”65 stated Beccaria. How to accomplish this in the hurly burly of human life and passion?
Not only must laws be clear and equally enforced, but knowledge must be disseminated, the tribunals enforcing the laws must not be corrupt, virtue should be rewarded, and education must be improved.67
Beccaria in a Nutshell
In the last words of his Essay, Beccaria wraps all his thoughts into a convenient theorem:
Beccaria’s Influence on American Founding Fathers and the American Constitution
The influence of Beccaria is not limited to Europe. His influence on the political philosophy of our Founding Fathers, and the close association of his thoughts with the program of the Constitution and Bill of Rights, can be seen by juxtaposing Beccaria’s words next to the words of our fundamental principles of criminal law. The right to a speedy, public trial, the right to a trial by jury of one’s peers, the right to confront one’s accuser, the right to assistance of counsel, the right against self-incrimination, protection from cruel and unusual punishment. All these can be found in one manner or another in Beccaria. “While the influence of the English tradition is visible in many of these measures, there is no doubt that the writings of Beccaria . . . were responsible for the attitude that prevailed in a number of resolutions adopted by the new nation.”69
Beccaria’s importance to our Founding Father’s thoughts may be illustrated by the fact that Jefferson copied (in the original Italian) twenty-six lengthy passages from Beccaria’s Of Crimes and Punishments into his Legal Commonplace Book. One of these has become a locus classicus of those fervent in defending the 2nd Amendment’s right to keep and bear arms:
Conclusion
The influence of Beccaria’s Dei delitti e delle pene was enormous in both Europe and in the United States. His role as the founder of modern penology and criminology earns him a spot among the innovators and reformers of the law. But Beccaria was more. This shy man’s humanitarian concern for the rights of the accused and the well-being of criminals, his role in ending judicial torture, and his part in raising social consciousness regarding capital punishment make him one of the great personages in the Who’s Who of the Law. In his preface to the French translation of Beccaria’s essay, André Morellet stated that once a book plead the cause of humanity, it belonged to the world and to every nation.71 And so Beccaria’s essay does. The philosophical presuppositions of his Of Crimes and Punishment, like much of what came out of the Enlightenment, are a mixed bag. But Beccaria’s described his philosophy as the “philosophy of the heart.”72 The heart has reasons of its own, Pascal tells us. And in this region—Beccaria’s heartfelt solicitude for the rights of those accused or in prison—there is no room for argument. Only assent. Both our heart and the evangel—but not necessarily utilitarianism—charge us to visit those in prison with their rights.73
Endnotes
1 Francis Kidder, History of the Boston Massacre (Albany: Joel Nunsell, 1870), 232. Adams quoted from the Introduction of Beccaria’s work. Beccaria, 9. He had earlier copied it into his diary. David McCullough, John Adams (New York: Simon & Schuster, 2001), 66-67. ⇑
2 Marvin E. Wolfgang, “Introduction” in Cesare Beccaria, Of Crimes and Punishments (New York: Marsilio Publishers, 1996), i. ⇑
3 Voltaire, Commentaire sur le Livre des Delits et des Peines par un Avocat de Province (1766); see Appendix in Beccaria. ⇑
4 See., e.g., 4 WILLIAM BLACKSTONE, COMMENTARIES *3, *321 n. s (calling Beccaria “ingenious” and his discussion against torture “an exquisite piece of raillery”). ⇑
5 Jeremy Bentham called Beccaria his “master,” and the “first evangelist of reason.” Wolfgang, iii quoting a manuscript in University College, London cited by E. Halevy, La Formation du Radicalisme Philosophique, 30 (1901). ⇑
6 [_Marcello Maestro, Cesare Beccaria and the Origins of Penal Reforms (Philadelphia: Temple University Press, 1973), 68-70, 134.+] ⇑
7 Maestro, 134. ⇑
8 Beccaria did not enjoy universal acclaim, and had his critics, including (on the right) a Vallombrosan monk named Ferdinando Facchinei, whose arguments are not all particularly edifying and (on the left) Abbé Gabriel Bonnot de Mably. These opposition views are described by Young (1986), 130-34. Facchinei was particularly vicious, accusing Beccaria of sedition and impiety. The accusations were of sufficient concern as to give Beccaria the felt need that he had to justify himself in a prefatory note that was added in later editions of the Essay. Beccaria (Young), n. 1. ⇑
9 Jefferson had 26 entries of Beccaria’s work in his Commonplace Book. Wolfgang, ii. ⇑
10 Adams opened his defense of William Wemms and five other British soldiers in the Boston Massacre trial with this quotation from Beccaria’s Of Crimes and Punishments. See Wolfgang, ii; McCollough, 66-67. ⇑
11 The book was translated into English in 1767. Adams had a copy in his library. Jefferson read it in its original Italian. ⇑
12 Joseph A. Schumpeter, History of Economic Analysis (New York: Oxford University Press, 1954), 179. ⇑
13 Letter from Beccaria to André Morellet (Jan. 26, 1766) in Beccaria (Bellamy), 119. ⇑
14 One of the children, a daughter named Giulia, married Pietro Manzoni, a rich land owner from Lecco, and was mother to the famous Italian author, Alessandro Manzoni. ⇑
15 Translated, it means Coffee, or synecdochically, Coffeehouse. ⇑
16 Maestro, 11. ⇑
17 Beccaria, 11. ⇑
18 “The immortal . . . Montesquieu . . . has compelled me to follow in the shining path of this great man.” Beccaria, 9. ⇑
19 Schumpeter, 179. ⇑
20 He was appointed by Count Kaunitz-Rittberg, Chancellor of the Austrian government under the Empress Maria Theresa. Beccaria (Bellarmy), xi, 129. Lombardy, which included the city of Milan, was under Austrian (Habsburg) rule between 1713 and 1796. ⇑
21 Published as Elementi di economia publica (Elements of Public Economy) in a collection of economic writings, Scrittori Classici Italiani di Economia politica (Classic Italian Writers of Political Economy). Beccaria accepted the economic views (“laissez faire, laissez passer”) of the physiocrats. Maestro, 86-87. ⇑
22 Schumpeter, 179. ⇑
23 Schumpeter, 179-80. “Both were sovereign lords of a vast intellectual realm that extended far beyond what, even then, was possible for ordinary mortals to embrace. . . . Splendid figures both of them.” Id. at 180. Construing Beccaria’s penological views with his economic views, some commentators have been less praiseworthy of Beccaria, seeing Beccaria as a promoter of the interests of the bourgeoisie and capitalism, not as a humanitarian. See the discussion in David B. Young, Property and Punishment in the Eighteenth Century: Beccaria and His Critics, 31 AMER. J. JURIS. 121, 122-23 (1986). A synopsis of Beccaria’s capitalistic economic views is given in Young (1986), 124-31; see also Beccaria (Young), xii. ⇑
24 Maestro, 144, 145-50 ⇑
25 Beccaria studiously avoided appeals to either revelation or natural law, striving to make a clear distinction between “God’s justice, which was best left to Him, and terrestrial justice.” Beccaria (Bellamy), xv. This rejection of the natural law (“the rattling chain of superstition and the howls of fanaticism,” as he put it in a letter to André Morellet) is what fed his desire to limit judicial discretion in the construction of criminal laws. Based upon an empiricist epistemology, Beccaria rejected the notion of right as containing any substantive value independent of consequences and based upon universal teleological nature; rather, rights were an “abbreviated symbol” for the results of utilitarian calculus. Beccaria (Belamy), xvi, xvii. This represented the germ of positivism, and put him at odds with Catholic moral thought and doctrine. Beccaria was, however, judicious in his words for fear of reaction to such a theory in contradiction to the teachings of the Church. As he put it in the same letter to André Morellet: “I wish to defend humanity without being a martyr to it.” Beccaria (Bellamy), 121. Though he did not put it in so many words, Beccaria likely thought what his philosophical successor Bentham later wrote in his Anarchical Fallacies: “natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,—nonsense upon stilts.” Beccaria’s opponent Fachinnei seized upon this as one of his criticisms against the essay. Fachinnei charged: “The author of the book On Crimes and Punishments . . . does not know that kind of justice which originates from the eternal legislator.” Maestro, 35. ⇑
26 According to Beccaria, laws have favored the rich and powerful, and the principle of utilitarianism has never been applied. Laws “have never been dictated by a cool scrutineer of human nature, able to condense to on particular the activities of a multitude of men, and consider them from this point of view: the greatest happiness of the greatest number.” Beccaria, 8-9 (la massima felicità divisa nel maggior numero) (emphasis in original). ⇑
27 Beccaria (Bellamy), xviii. ⇑
28 Beccaria (Bellamy), xxi-xxii. ⇑
29 For example, Beccaria suggests that problems associated with penology can be solved with the precision of geometry, Beccaria, 10, and He also is chronologically parochial. E.g., Beccaria, 8. ⇑
30 Beccaria, 7. ⇑
31 Beccaria, 13, n. 1. “[P]ublic utility . . . is the basis of human justice.” Beccaria, 77. ⇑
32 Beccaria, 11-13. ⇑
33 Beccaria, 13. “Punishments which go beyond the need of preserving the common store or deposit of public safety are in their nature unjust.” Id. at 14. ⇑
34 Beccaria, 7, 8. ⇑
35 Beccaria, 9. ⇑
36 Beccaria, 34-42. ⇑
37 Beccaria, 9. ⇑
38 Beccaria, 9. ⇑
39 Beccaria, 14, 19. ⇑
40 Beccaria, 21-22. ⇑
41 Beccaria, 14, 15, 21-22. ⇑
42 Beccaria, 17. ⇑
43 Beccaria, 23-29, 32-33, 46-48. ⇑
44 Beccaria, 25, 29. ⇑
45 Beccaria, 42. ⇑
46 Beccaria, 49 (“The aim, then of punishment can only be to prevent the criminal committing new crimes against his countrymen, and to keep others from doing likewise.”) ⇑
47 Beccaria, 49, 73-76. ⇑
48 Beccaria, 76-78. ⇑
49 Beccaria, 51-52. ⇑
50 Beccaria, 68 ⇑
51 Beccaria, 50. ⇑
52 Beccaria, 80-112. ⇑
53 Beccaria, 61-64. ⇑
54 Beccaria, 66. ⇑
55 Beccaria, 65 ⇑
56 Beccaria, 67. ⇑
57 Beccaria, 68-69. ⇑
58 Beccaria, 70-71. ⇑
59 Beccaria, 9. ⇑
60 Beccaria, 52. ⇑
61 Beccaria, 52-53. As Camus put it: “Religious values, especially the belief in an eternal life, are thus the only ones which the death penalty can be based since according to their own logic they prevent that penalty from being final and irreparable.” Albert Camus, Reflections on the Guillotine, reprinted in Ephraim London, ed. The World of Law, Vol. II: The Law as Literature (New York: Simon and Schuster. New York, 1960), 544-45. ⇑
62 Beccaria, 53. ⇑
63 Maestro, 126, 128. ⇑
64 Beccaria, 9. ⇑
65 Beccaria, 112. ⇑
66 Beccaria, 113, 114. ⇑
67 Beccaria, 114-18. “On the proposition [of rewarding virtue], I observe a total silence in the laws of every nation at the present time.” Beccaria, 118. ⇑
68 Beccaria, 119. ⇑
69 Maestro, 143. ⇑
70 Beccaria, 105; see Thomas Jefferson, The Commonplace Book of Thomas Jefferson 314 (G. Chinard ed. 1926). ⇑
71 Beccaria (Bellamy), 120. ⇑
72 Beccaria (Bellamy), 120. ⇑
73 Cf. Matt. 25:31-46. ⇑
