The Debate on Judicial Torture in Austrian Lombardy

As legal and intellectual historians have demonstrated, the use of judicial torture began declining significantly in western Europe in the centuries before its widespread abolition at the end of the eighteenth century. Scholars have debated the reasons for this decline. It has been generally assumed that the increasingly limited application of torture in judicial proceedings was the direct result of the abolitionist efforts of philosophers such as Cesare Beccaria and Voltaire. Nevertheless, in Torture and the Law of Proof (1977), lawyer and legal historian John Langbein dismissed this belief as a “fairy tale.”¹ Instead, he argued, the end of judicial torture was the result of changes in legal procedure dating to the seventeenth century that made it easier for judges to apply less severe punishments, poenae extraordinariae, for capital crimes where absolute proof (which generally came in the form of confession) had previously been necessary. The history of the debate on torture in Austrian Lombardy, however, challenges Langbein’s strictly legalistic account of torture’s abolition. At least in the Duchy of Milan, the debate on torture and its ultimate elimination were, in fact, part of a more complicated intellectual and legal history that grew from the interactions between rulers and philosophers, political centers and peripheries, and even parents and children.

Sometime around 1777, the eighteenth-century Milanese philosopher, political economist, and public administrator Pietro Verri finished writing Observations on Torture, a detailed examination of the 1630 arrest, interrogation, and execution of Gian Giacomo Mora and Guglielmo Piazza, the two men accused of having spread the plague in the city. Studying Giuseppe Ripamonti’s eyewitness account of Milan during the plague, as well as the actual transcripts of Mora’s and Piazza’s trials, Verri wrote what stands today as the enlightenment’s most thorough denunciation of torture’s efficacy in judicial proceedings. However, for reasons that owed to his problematic relationship with his family and to the local power structure of his native Milan, Verri chose not to publish the Observations during his lifetime. Instead, it was the Essay on Crimes and Punishments, published in 1764 by his onetime friend and collaborator Cesare Beccaria, that would continue to be most associated with the enlightenment critique of judicial torture—an association that, as Langbein’s argument shows, still persists today.

As we know, Beccaria’s Essay became a sensation throughout Europe, primarily because of its immediate translation into French by the abbé Morellet and the stamp of approval it received from the philosophes. Slightly less known than its reception is its origin. Conceived and written in Pietro Verri’s study, Essay on Crimes and Punishments was the most celebrated work to come out of the facetiously called Accademia dei pugni. Begun by Pietro and his brother Alessandro, the Accademia was an informal group of young Milanese men who were deeply influenced by the work emanating from Parisian philosophical circles and who shared a commitment to social betterment. However, unlike their French counterparts, they were almost all born into noble families occupying important political positions. This was particularly true for the Verri brothers whose father Gabriele was a longstanding member of the Milanese Senate, the most powerful political and judicial institution of the city. Consequently, for the Milanese philosophers, questioning traditional beliefs and practices often meant rebelling not only against the social and political order but also against one’s own family. It is this particularity that led historian Franco Venturi to characterize the Milanese enlightenment as a “struggle between generations” in which Pietro Verri and Beccaria “affirmed their vocation as reformers and Enlightenment thinkers in opposition to the environment in which they were born and raised.”²

Beccaria’s Essay on Crimes and Punishments was created in this particular setting. In a letter dated April 16, 1803 to his friend Isidoro Bianchi, Alessandro Verri looked back on the origins and early development of the book. Alessandro was working at the time, like his brother before him, as a “protector of the incarcerated.”³ The brothers’ work with the city’s imprisoned had led to a general discussion of crime and the...