How Cesare Beccaria Shaped American Law

INCONTRO –DIBATTITO Dei delitti e delle pene: giustizia ed economia politica Roma, 26 novembre 2014 How Cesare Beccaria Shaped American Law By John D. Bessler How Cesare Beccaria Shaped American Law By John D. Bessler The year 2014 marks the 250th anniversary of the publication of Cesare Beccaria’s Dei delitti e delle pene (1764), the first Enlightenment text to make a comprehensive case against the death penalty. The ideas in the book famously led Leopold II—the Grand Duke of Tuscany—to abolish the death penalty in that dominion in 1786, just a year before the Constitutional Convention in Philadelphia that produced the U.S. Constitution. What is less well known is that Beccaria’s book, translated into English as On Crimes and Punishments in 1767, had a profound impact on early American leaders and laws. Beccaria never traveled to America, but his ideas for law reform reached American soil as part of the transatlantic book trade. He called for clear and precise written laws, proportionality between crimes and punishments, and an end to torture and capital punishment. Those ideas inspired American revolutionaries and the U.S. Constitution and its Bill of Rights—written documents protecting individual rights. George Washington, John Adams, Thomas Jefferson and James Madison—the first four U.S. Presidents—all admired On Crimes and Punishments, as did signers of the Declaration of Independence such as Dr. Benjamin Rush, the Philadelphia physician and anti-gallows activist. George Washington, America’s first commander- in-chief, bought Beccaria’s book in 1769; during the Revolutionary War (1775-1783), he said executions were too frequent and called the law of retaliation—torture and capital punishment—“abhorrent and disagreeable to our natures.” Thomas Jefferson and John Adams read Beccaria’s book in the original Italian, and Adams gave a copy of the book to his son. The Continental Congress—as an entire body—invoked “the celebrated Marquis Beccaria” alongside Montesquieu in October 1774, quoting these stirring words of the Italian philosopher in an open letter to the people of Quebec just months before the start of the Revolutionary War: “In every human society there is an effort continually tending to confer on one part the height of power and happiness, and to reduce the other to the extreme of weakness and misery. The intent of good laws is to oppose this effort, and to diffuse their influence universally and equally.” While Pennsylvania native John Dickinson referred to Beccaria’s “genius” and “masterly hand,” James Madison—the father of the U.S. Constitution—led the effort to adopt the U.S. Bill of Rights and, in Virginia, pushed for Thomas Jefferson’s “Bill for Proportioning Crimes and Punishments,” the very title of which reflects Beccaria’s influence. In fact, Madison advocated for Jefferson’s bill shortly before Philadelphia’s 1787 Constitutional Convention, with Madison—fascinated by the penitentiary system’s potential to eliminate the need for cruel punishments—later writing: “I should not regret a fair and full trial of the entire abolition of capital punishments, by any State willing to make it.” William Bradford, Madison’s close friend from their days together at Princeton, effusively praised Beccaria’s book in presenting an American edition of it to Luigi Castiglioni, an Italian botanist then touring America. “Long before the recent Revolution,” Bradford wrote in 1786, “this book was common among lettered persons 1 of Pennsylvania, who admired its principles without daring to hope that they could be adopted in legislation, since we copied the laws of England, to whose laws we were subject.” “[A]s soon as we were free of political bonds,” Bradford’s letter continued, “this humanitarian system, long admired in secret, was publicly adopted and incorporated by the Constitution of the State, which, spurred by the influence of this benign spirit, ordered the legislative bodies to render penalties less bloody and, in general, more proportionate to the crimes.” Beccaria’s book made a huge splash in colonial America, and its waves and ripples would be felt immediately and for generations to come. John Adams—the second U.S. President—passionately quoted Beccaria’s treatise at the Boston Massacre trial as he took on the unpopular task of representing British soldiers accused of murder. “I am for the prisoners at the bar,” Adams said in 1770 in open court, “and shall apologize for it only in the words of the Marquis Beccaria: ‘If by supporting the rights of mankind, and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or ignorance, equally fatal, his blessings and tears of transport shall be sufficient consolation to me for the contempt of all mankind.’” John Quincy Adams later remarked on the “electrical effect” his father’s words had in the courtroom. Thomas Jefferson—the third American President—was so taken with Beccaria’s treatise that he copied, in Italian, more than two dozens passages from it into his commonplace book. He drafted legislation to severely restrict Virginia’s death penalty, and he called the lex talionis a “revolting principle,” telling his friend and mentor, George Wythe, that the idea of an “eye for an eye, and a hand for a hand” was morally questionable and would be “revolting to the humanized feelings of modern times.” In 1807, Jefferson singled out On Crimes and Punishments as one of only a handful of books he recommended on the principles of government, later recalling that Beccaria “had satisfied the reasonable world of the unrightfulness and inefficacy of the punishment of crimes by death.” In his 1786 letter to Luigi Castiglioni, who visited all thirteen original American states, William Bradford—later chosen as George Washington’s Attorney General—made this telling observation: “The name of Beccaria has become familiar in Pennsylvania, his authority has become great, and his principles have spread among all classes of persons and impressed themselves deeply in the hearts of our citizens.” Along with Montesquieu—the celebrated French writer Madison called the “oracle” on separation of powers—Beccaria became synonymous with the Enlightenment and the principles of good government. In 1793, after the U.S. Bill of Rights was ratified, James Wilson—a key figure at America’s Constitutional Convention—again praised Beccaria, the Italian thinker Madison once described as being “in the zenith of his fame as a philosophical legislator.” One of only six men to sign both the Declaration of Independence and the U.S. Constitution, Wilson—a U.S. Supreme Court Justice who regularly invoked Beccaria’s name—put it this way: “‘How happy would mankind be,’ says the eloquent and benevolent Beccaria, ‘if laws were now to be first formed!’ The United States enjoy this singular happiness. Their laws are now first formed.” In his influential 1776 text, Thoughts on Government, John Adams—the long- time Beccaria admirer, and the drafter of the world’s oldest continuously operating 2 constitution, Massachusetts’ 1780 constitution—concluded that “the very definition of a republic is ‘an empire of laws and not of men.’” As Adams wrote: “No man will contend that a nation can be free that is not governed by fixed laws.” Beccaria, worried about abusive judicial discretion, had previously trumpeted “the constant fixed voice of the law.” Jefferson’s Declaration of Independence—speaking of equality, and the “unalienable” rights to “Life, Liberty, and the pursuit of Happiness”—itself echoed Beccarian principles. That America’s senior statesman, Benjamin Franklin, sent the proposed U.S. Constitution to two Italians shortly after the Constitutional Convention only reinforces the American attachment to the Italian Enlightenment. The men to whom Franklin sent his October 14, 1787 letters with their historic enclosures: the Milanese botanist Luigi Castiglioni, who traveled in Beccaria’s social circle, and the Neapolitan lawyer Gaetano Filangieri, the author of The Science of Legislation. That book, another Italian text that advocated for law and penal reform, was, like Beccaria’s, one Dr. Franklin greatly admired. American laws were “first formed,” the evidence shows, thanks in part to Beccaria’s book. That slender little treatise, praised by Voltaire, William Blackstone and Jeremy Bentham and by scores of Americans, made an important contribution to Anglo-American law and the development of human rights. Pennsylvanians thus had good cause to name a town after Beccaria, which they did in 1807. And more than two decades earlier, ample reasons existed for Madison’s friend and Jefferson’s Italian-American neighbor, Philip Mazzei, to suggest that Beccaria be made an honorary member of the Constitutional Society of Virginia. That society was founded in 1784, during the height of Beccaria’s celebrity, to further “those pure and sacred principles of Liberty, which have been derived to us, from the happy event of the late glorious revolution.” Cesare Beccaria—the economist, humanitarian, and criminal law theorist from Milan who sought the “greatest happiness” for the greatest number—embodied the spirit of the Enlightenment. He catalyzed the development of the Rule of Law by encouraging written laws, and Americans—receptive to Beccaria’s humanity and reasoned approach—felt a debt of gratitude. As the American jurist and legal commentator Nathaniel Chipman wrote: “The world is more indebted to the Marquis Beccaria, for his little treatise on Crimes and Punishments, than to all other writers on the subject.” John D. Bessler is a law professor at the University of Baltimore and the Georgetown University Law Center. He is the author of The Birth of American Law: An Italian Philosopher and the American Revolution (Carolina Academic Press, 2014). 3.

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