September 16, 2014

Private: The Birth of American Law: An Italian Philosopher and the American Revolution

American Revolution, Baze v. Rees, Eighth Amendment, founding fathers, Hope v. Pelzer, John Bessler, Revolutionary War, The Constitutional Sources Project, Thomas Jefferson

by John D. Bessler, Associate Professor, University of Baltimore School of Law; Adjunct Professor, Georgetown University Law Center

Two hundred and fifty years ago, a 26-year-old Italian thinker, Cesare Beccaria, published Dei delitti e delle pene, a book written in his native language. Translated into English three years later as On Crimes and Punishments, Beccaria’s slender, 1764 treatise called for proportion between crimes and punishments, quickly becoming an eighteenth-century bestseller. Also translated into French by AndrĂ© Morellet, the same man who later translated Thomas Jefferson’s Notes on the State of Virginia, Beccaria’s treatise—advocating clear and precise laws and opposing torture—became the first Enlightenment text to advocate the death penalty’s abolition.

Beccaria’s influence on American law has long been neglected—as has the contribution of the Italian Enlightenment, or Illuminismo, to early American thought. In fact, many of America’s founders studied Italian, were greatly inspired by Beccaria’s book, and read other Italian writers such as Gaetano Filangieri and Giacinto Dragonetti. They invoked Beccaria’s ideas in their speeches and writings and they relied on them in debates and in crafting early American constitutions and laws.  For example, Pennsylvania’s 1776 constitution declared that penal laws “shall be reformed by the legislature of this state, as soon as may be, and punishments made in some cases less sanguinary, and in general more proportionate to the crimes.”

Beccaria’s book shaped American history. George Washington bought a copy in 1769 and, during the Revolutionary War, wrote Congress that death sentences were too frequent, lamenting “the want of a proper gradation of punishments.” At the Boston Massacre trial in 1770, John Adams forcefully quoted Beccaria’s words in defending British soldiers accused of murder, with his son John Quincy Adams later noting the “electrical effect” of those words. And in Virginia, Thomas Jefferson and James Madison sought to curtail capital offenses by pushing for the adoption of “A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital.”

One way in which Beccaria influenced America’s Founding Fathers is by shaping their views on cruelty, the concept embedded in the U.S. Constitution’s Eighth AmendmentJames Wilson—a signer of the Declaration of Independence and the U.S. Constitution—regularly cited Beccaria’s work and called “cruel” punishments “dastardly and contemptible.”  And in the 1820s, Madison spoke of his attraction to “penitentiary discipline” as a substitute for “the cruel inflictions so disgraceful to penal codes.”  After receiving an anti-death penalty pamphlet that quoted Beccaria, Madison wrote to a Kentucky physician: “I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it.”

For some, abolition became a moral imperative. “The marquis of Beccaria,” Dr. Benjamin Rush wrote in The American Museum in 1789, “has established a connexion between the abolition of capital punishments and the order and happiness of society.”  In March of 1787, just months before delegates assembled in Philadelphia for the Constitutional Convention, Dr. Rush specifically invoked Beccaria’s name at the house of America’s elder statesman Benjamin Franklin.  Dr. Rush called death “an improper punishment for any crime.”

The scope of Beccaria’s influence can be gleaned from a 1786 letter that William Bradford, then Pennsylvania’s attorney general, sent to Luigi Castiglioni, an Italian botanist who toured the U.S. in the mid-1780s.  In his letter, Bradford—Madison’s close friend from their days together at the College of New Jersey, now Princeton—heaped praise upon On Crimes and Punishments.  “Long before the recent Revolution,” Bradford explained in his letter, later reprinted in Castiglioni’s travelogue, “this book was common among lettered persons 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.”  President Washington later made Bradford, the Beccaria disciple, the country’s second Attorney General. 

One of Beccaria’s core principles—embraced by American revolutionaries such as John AdamsThomas Jefferson, James Wilson and William Bradford—was that any punishment which is not “absolutely necessary” is “cruel” and “tyrannical.” In 1793, Bradford wrote An Enquiry How Far the Punishment of Death Is Necessary in Pennsylvania, a report that mentions Beccaria in its first paragraph and emphasizes that “as soon as the principles of Beccaria were disseminated, they found a soil that was prepared to receive them.” In his 1820s autobiography, Jefferson himself singled out the Italian philosopher, writing: “Beccaria and other writers on crimes and punishments had satisfied the reasonable world of the unrightfulness and inefficacy of the punishment of crimes by death.”

At a recent event co-sponsored by The Constitutional Sources Project at The George Washington University Law School, Associate Justice Ruth Bader Ginsburg called death-row appeals the U.S. Supreme Court’s “hardest” cases.  “It was being part of a process that determined life or death,” she said on February 12, 2014, that has always made them the “most troubling.”  In an earlier talk, Justice Ginsburg said much the same thing, calling the review of death cases “a dreadful part of the business.”

The Supreme Court’s existing Eighth Amendment jurisprudence is equally dreary, as well as unprincipled. On the one hand, the Eighth Amendment—whose touchstone is “human dignity”—is said to protect prisoners from harm. In Hope v. Pelzer, the Court described handcuffing an inmate to a hitching post for hours in the hot sun as an “obvious” Eighth Amendment violation. On the other hand, executions—which inflict death, the greatest harm of all—are held to be constitutional in cases like Baze v. Rees.  

The anomaly of executions is made clear by the fact that non-lethal corporal punishments have long been abandoned in the U.S. penal system. Way back in 1968, the U.S. Court of Appeals for the Eighth Circuit declared that whipping prisoners is an Eighth Amendment violation.  While ear cropping, the pillory and the whipping post—all punishments used in the founding era—are, thankfully, no longer part of American life, state-sanctioned killings bizarrely continue, even though only a handful of counties, mainly in the South, now inflict death sentences.

“The ‘Lex talionis,’” Thomas Jefferson once told his mentor George Wythe, “will be revolting to the humanized feelings of modern times.”  “An eye for an eye, and a hand for a hand,” Jefferson wrote, “will exhibit spectacles in execution, whose moral effect would be questionable.”  In the twenty-first century, what Jefferson would surely see as modern times, U.S. lawyers, judges and lawmakers should finally take to heart the words now inscribed at the Jefferson Memorial. As Jefferson wrote in 1816: “laws and institutions must go hand in hand with the progress of the human mind” and must “keep pace with the times.” “We might as well require a man to wear still the coat which fitted him when a boy,” Jefferson warned, “as civilized society to remain ever under the regimen of their barbarous ancestors.”