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.

Sodomy Law: New Netherland, 1613

Death for sodomy

The New Netherland Colony, the area now known as New York, was under Dutch rule from 1613 until 1664, when the English took control. During Dutch rule, the law of Holland, which descended from the Roman Emperor Justinian, punished sodomy with death.(1) Sodomy cases in Dutch-held New Amsterdam were recorded on June 25, 1646; August 26, 1658; and May 13, 1660.

In May 2009, Theo van der Meer provided OutHistory.org with a fuller explanation of early Dutch criminal law in regard to sodomy.

To understand premodern Dutch criminal law in regard to anal intercourse (sodomy), one needs to know that until Napoleon in 1811 enforced the French penal code in the Netherlands no unified criminal code existed in the country.

From the 16th century, when the northern provinces of the low countries renounced its ruler, the Spanish Habsburg king, Philip II, until the end of the 18th century, the country known as The Republic of the United Provinces was a loosely organized federation of seven provinces, each with its own administration as well as laws.

Some provinces (or the regions within provinces) had anti-sodomy statues, but the most powerful province of Holland did not until the year 1730.

But even in the absence of explicit criminal laws a whole range of other regulations could apply and verdicts against culprits often referred to such authorities. Charles V’s Constitutio Criminalis Carolina of 1532 (art. 116), which required the death penalty for sodomy, was the most authoritative.

Verdicts often also made references to Mosaic law (Genesis), Roman law (such as the Lex Scantinia from the 3rd century BC), or the Lex Julia de Adulteriis Coercendis (from the 1st century BC), although the application of these old laws to sodomy is ambiguous and questionable.

Verdicts also referred to old commentaries, collections of verdicts, or manuals published by jurists, and sometimes to custom. Some verdicts were based on Italian sources. All these authorities were interpreted as requiring the death penalty for anal intercourse.

Some commentaries, like the Practycke Criminele (art. 88), by Philips Wielant, dated back to before Charles’ Constitutio.

One of the most important manuals, based on the Contitutio, the Praxis Rerum Criminalium, of 1554, was by Joost de Damhouder. Like Wielant, de Damhouder (in art. 96) demanded the death penalty for crimes against nature. According to him, such crimes could be perpetrated between men, between women, between men and women (including between a man and his wife or a man and a prostitute), with animals (which he considered the worst crime), with one oneself, or with non-Christians. If a crime against nature included anal intercourse, it was to be punished with burning at the stake. Equally authoritative was the German Benedikt Carpzov’s Practica nova imperialis Saxonica rerum criminalium, of 1635.

From the early 17th century on, burning as punishment was replaced by strangulation or drowning in a barrel. Sodomy on board ships was, when proven before a ship’s council, or by councils in one of the colonies, was according to custom usually punished by putting the men overboard, tied to weights.(2)

References

Adapted from Jonathan Ned Katz, Gay/Lesbian Almanac (NY: Harper & Row, 1983) p. 69, which cites Louis Crompton, "Homosexuals and the Death Penalty in Colonial America," Journal of Homosexuality, vol. 1, no. 3 (1976), p. 282.
Sources for van der Meer's addition are: A.H. Huussen, Gerechtelijke vervolging van "sodomie" gedurende de 18e eeuw in de Republiek, in het bijzonder in Friesland, in Groniek. Gronings Historisch Tijdschrift 12 (1980) 1, 18-33. T. van der Meer, Sodoms zaad in Nederland. Het ontstaan van homoseksualiteit in de vroegmoderne tijd (Nijmegen: SUN, 1995), 27-30. D.J. Noordam, Riskante relaties. Vijf eeuwen homoseksualiteit in Nederland, 1233-1733 (Hilversum, Verloren, 1995) 31-32, 249-250.