III. THE LAW AND BECCARIA

The morals and manners of Italy remained a mixture of violence and indolence, vendetta and love. The fourteen-year-old Mozart wrote from Bologna in 1770, “Italy is a sleepy country”;28 he had not learned the philosophy of siesta. His father, in 1775, was of the opinion that ‘Italians are rascals all the world over.”29

Both Mozart and Goethe commented on Italian crime. In Naples, wrote Mozart, “the lazzaroni [beggars] have their own captain or head, who draws twenty-five silver ducats from the King each month for nothing more than to keep them in order.”30 “What strikes the stranger most,” wrote Goethe, “is the common occurrence of assassination. Today the victim has been an excellent artist—Schwendemann. … The assassin with whom he was struggling gave him twenty stabs; and as the watch came up, the villain stabbed himself. This is not generally the fashion here; the murderer usually makes for the nearest church; once there he is quite safe.”31 Every church gave the criminal “sanctuary”—immunity from arrest so long as he remained under its roof.

The law attempted to deter crime rather by severity of punishment than by efficiency of police. Under the laws of the gentle Benedict XIV blasphemy was punished by flogging, and, for a third offense, five years in the galleys. Unlawful entry of a convent at night was a capital crime. The solicitation or public embrace of an honorable woman brought condemnation to the galleys for life. Defamation of character, even if it spoke nothing but the truth, was punishable with death and confiscation of goods. (Pasquinades abounded none the less.) A like penalty was decreed for carrying concealed pistols. These edicts were in many areas evaded by flight to a neighboring state, or by the mercy of a judge, or by sanctuary of a church, but in several instances they were strictly carried out. One man was hanged for pretending that he was a priest, another for stealing an ecclesiastical vestment which he sold for one and a quarter francs; another was beheaded for writing a letter that accused Pope Clement XI of a liaison with Maria Clementina Sobieska.32 As late as 1762 prisoners were broken on the wheel, bone after bone, or were dragged over the ground at the tail of a prodded horse. We should add, as a brighter side to the picture, that some confraternities raised money to pay the fines and secure the liberation of prisoners. Reform of the law, in both its procedure and its penalties, became a natural part of that humanitarian spirit born from the double parentage of a humanist Enlightenment and a Christian ethic freed from a cruel theology.

It is to the credit of Italy that the most effective appeal for law reform came in this century from a Milanese nobleman. Cesare Bonesana, Marchese di Beccaria, was a product of the Jesuits and the philosophes. Though rich enough to be idle, he gave himself with restless devotion to a career of philosophical writing and practical reform. He refrained from attacking the religion of the people, but confronted directly the actual conditions of crime and punishment. He was shocked to see the disease-breeding filth of Milanese jails, and to hear from prisoners how and why they had taken to crime, and how they had been tried. He was dismayed to find flagrant irregularities in procedure, inhuman tortures of suspects and witnesses, arbitrary severities and mercies in judgment, and barbarous cruelties in punishment. About 1761 he joined with Pietro Verri in a society which they called Dei Pugni—“The Fists”—vowed to action as well as thought. In 1764 they started a review, Il Caffè, in imitation of Addison’s Spectator. And in that year Beccaria published his historic Tratto dei delitti e delle pene {Treatise on Crimes and Penalties).

He modestly announced at the outset that he was following the lead of The Spirit of Laws of “the immortal President” of the Bordeaux Parlement. Laws should be based upon reason; their basic reason is not to avenge crime but to preserve social order; they should always aim at “the greatest happiness divided among the greatest number” (la massima felicità divisa nel maggior numero );33 here, twenty-five years before Bentham, was the famous principle of utilitarian ethics. Beccaria, with his customary candor, acknowledged the influence of Helvétius, who had offered the same formula in De l’ Esprit (1758). (It had already appeared in Francis Hutcheson’s Ideas of Beauty and Virtue, 1725.) For the good of society, said Beccaria, it would be wiser to widen and deepen education, in the hope of diminishing crime, than to resort to punishments that, by association, may transform an incidental miscreant into a confirmed criminal. Every accused person should have a fair and public trial before competent magistrates pledged to impartiality. Trial should come soon after accusation. Punishment should be proportioned not to the intention of the agent but to the harm done to society. Ferocity of punishment breeds ferocity of character, even in the noncriminal public. Torture should never be used; a guilty man accustomed to pain may bear it well and be supposed innocent, while an innocent man with keener nerves may be driven by it to confess anything and be judged guilty. Ecclesiastical sanctuary for criminals should no longer be allowed. Capital punishment should be abolished.

The little book went through six editions in eighteen months, and was translated into twenty-two European languages. Beccaria praised the French version by Morellet as superior to the original. Voltaire contributed an anonymous preface to that translation, and repeatedly acknowledged the influence of Beccaria on his own efforts at law reform. Most Italian states soon reformed their penal codes, and nearly all Europe discarded torture by 1789. Catherine was moved by Beccaria as well as Voltaire in abolishing torture in her dominions; Frederick the Great had already ended it in Prussia (1740) except for treason.

In 1768 Beccaria was appointed to a chair of law and economy founded expressly for him in the Palatine College at Milan. In 1790 he was named to a commission for the reform of jurisprudence in Lombardy. His lectures anticipated several basic ideas of Adam Smith and Malthus on the division of labor, the relation between labor and capital, and between population and the food supply. In him the humanism of the Renaissance was reborn as the Enlightenment in Italy.

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