Colonial America: The Age of Sodomitical Sin, 1607-1783, by Jonathan Ned Katz

The years from 1607 to 1783 constitute the founding era of what became the United States. In the early years of this era, in these American colonies, the penalty for sodomy was death, and a number of executions are documented. Sodomy was usually conceived of then as anal intercourse between men. But why was sodomy thought of as treason against the state and punished so harshly? And what do we know of sexual and intimate relationships between women in these years, and the laws and responses to such intimacies? This feature presents or references the original documents that Jonathan Ned Katz collected in his books Gay American History (1976) and Gay/Lesbian Almanac (1983), along with evidence that others subsequently discovered. Published originally on OutHistory in 2012.

William Blackstone: "crime against nature," 1772

William Blackstone

The fourth book of Blackstone's influential Commentaries on the Laws of England, published for the first time in America, contains a section on the "crime against nature, committed either with man or beast'."

"Crime against nature" appears in a section of Blackstone's volume on what he calls "Public Wrongs." These include crimes against "God and Religion," "the King and Government," against "the Public Peace" and the "Police," against "Public Trade" and "Public Health," against "the Habitations of Individuals," and "Private Property."

The section on "crime against nature" appears in chapter fifteen on "Offences against the Person of Individuals," after a section on rape, and following a separate chapter on "Homicide."

Blackstone speaks of the "crime against nature" as "a still deeper malignity" than rape. The crime against nature, he says,

ought to be strictly and impartially proved, and then as stictly and impartially punished. But it is an offence of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out: for, if false, it [the false charge] deserves a punishment inferior only to that of the crime itself.

I will not act so disagreeable a part, to my readers as well as myself, as to dwell any longer upon a subject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law, which treats it, in its very indictments, as a crime not fit to be named; "peccatum illud horribile, inter christianos non nominandum [that horrible crime not to be named among Christians]."

A note refers to a complaint in Parliament under Edward III, "that a Lombard did commit the sin 'that was not to be named'." Blackstone adds that the "taciturnity" [reticence] concerning the crime against nature is also observed by the edict of Constantius and Constans. Blackstone then includes a Latin a quotations which, translated, reads: "where that crime is found, which it is unfit even to know, we command the law to arise armed with an avenging sword, that the infamous men who are, or shall in future be guilty of it, may undergo the most severe punishments." This leads Blackstone "to add a word" concerning the punishment of the crime against nature. This crime, says Blackstone, "the voice of nature and of reason, and the express law of God, determine to be capital." He cites Leviticus 20.13 and 15.

As a "signal instance, long before the Jewish dispensation," of the punishment of this crime by death, Blackstone cites "the destruction of two cities [Sodom and Gomorrah] by fire from Heaven; so that this is an universal, not merely a provincial, precept." In other words, the capital punishment of the crime against nature was not only a local custom of one particular society, but a punishment meant to apply universally in all societies.

Ancient English law, says Blackstone, citing several early legal connnentators, "in some degree imitated" the Biblical capital punishment for this crime, "by commanding such miscreants to be burnt to death." One early commentator, Fleta, says such criminals "should be buried alive." Either burning or burying were the punishments "used for this crime among the ancient Goths," says Blackstone. "By now," he adds, "the general punishment of all felonies is the same, namely, by hanging."

This particular offense, adds Blackstone parenthetically, "(being in the time of popery only subject to eccesliastical censures) was made a felony without benefit of clergy" by the statutes of Henry VIII and Queen Elizabeth. The rule of law applying to such fellons is that, if both parties are of the age of discretion, the perpetrator and the consenting party are both liable to the same death penalty.

Blackstone adds that in the case of "assault" with the intent to commit a "crime against nature" the punishment, besides a "heavy fine and imprisonment," usually includes "the pillory."

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Note

William Blackstone, Commentaries on the Laws of England. Book The Fourth . . . Reprinted From The British Copy, Page For Page With The Last Edition (Philadelphia.: Robert Bell, 1772), Ch. 15, Prt. IV, pp. 215-17. Evans #12,327. The translations of the Latin sections are quoted from an edition edited by William Carey Jones, vol. II (San Francisco: Bancroft-Whitney, 1916), pp. 2422-2423. For the Lombard reference see Rot. Parl. 50 Edw. III n. 58 (12 Rep. 37). Some footnotes in original omitted.