Sodomy law: Massachusetts Bay, November, 1641

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"If a man lyeth with mankind. . .they both shall surely be put to death"

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Massachusetts Bay legislators adopted (but did not yet print) their Body of Laws and Liberties, welcoming refugees from famines, wars, or "the Tyranny or oppression of their persecutors." This code was written by the Reverend Nathaniel Ward.

A list of the crimes punished by death was printed as a broadside, purportedly first in Massachusetts in 1641-42, then, with some additions, in London in 1643. The original Massachusetts broadside of 1641-42 (no copies of which now exist) was the first publication of any laws in colonial America. The whole Body of Laws and Liberties was first printed in 1648.[1]

Most of the fifteen capital crimes listed in the London broadside of 1643 were based on Old Testament references actually cited in the text. The capital laws of Massachusetts Bay provided death for:

(1) "any man" who worshiped any God "but the Lord God";

(2) "any man or woman" who "be a Witch";

(3) "any person" who shall "blaspheme the Name of God";

(4) "any person" who commited "willful [premeditated] murder" (or "manslaughter");

(5) "any person" who "slayeth another suddenly," in anger;

(6) "any person" who slew another "through guile";

(7) "a man or woman" who shall "lie with any beast, or brute creature, by carnal copulation" (the beast, also, was to be "slain, and buried");

(8) The sodomy provision, quoting from the Old Testament, read:

If a man lyeth with mankind, as he lyeth with a woman, both of them have committed abomination, they both shall surely be put to death. Lev. 20:13.

(9) "any person" who committed "adultery with a married, or espoused (engaged} wife" (both "the Adulterer, and the Adulteress" were to be executed);

(10) "any man" who had "carnal copulation with any woman-child under ten years old, either with, or without her consent";

(11) "any man" who "forcibly," without consent, "shall ravish any maid or woman that is lawfully married or contracted";

(12) "any man" who shall "ravish any maid or single woman" above the age of ten "(committing carnal copulation with her by force, against her will)"--the penalty was either death or "some other grievous punishment, according to the circumstances";

(13) "any man" who "stealeth a man, or man-kind" (the latter term was no doubt intended to include women);

(14) "any man" who "by false witness" (perjury) intended "to take away any man's life";

(15) "any man" who shall "conspire, or attempt any invasion, insurrection, or public rebellion against our Common-wealth," or who shall "attempt the alteration and subversion of our frame of polity, or government fundamentally" (treason).

Crimes 10, 11, and 12 were added to the original list on June 14, 1642, after the case of male-female sexual child abuse described in Sodomy debate: Massachusetts Bay, 1641-1642.

Historian George Haskins says that the passage of this law, and the cluster of sodomy, bestiality, and related cases, 1641-42, coincided with an "economic depression which befell the [Massachusetts Bay] colony, in 1639, as a result of the drift toward civil war in England. Immigration came virtually to a halt." The "onset of war in 1642, together with the colony's growing reputation for intolerance, not only discouraged new settlers but even caused many of the colonists to return to England or settle elsewhere. These developments had a profound effect on the economy of the colony." With the "rapid growth of a debtor class" came "an attendant increase in crime."[2] We may speculate that the temporary halt in immigration as a means of population increase was associated with a greater stress on procreation, a greater concern about non-procreative sexual acts.

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  1. Adapted from Jonathan Ned Katz, Gay/Lesbian Almanac (NY: Harper & Row, 1983), citing Wm. H. Whitmore, ed., The Colonial Laws of Massachusetts (Boston: Rockwell and Churchill. 1890), p. 55; George L. Haskins, "The Capitall Lawes of New England," Harvard Law School Bulletin, vol. 7 (Feb. 1976), pp. 10-11; and Charles M. Andrews, The Colonial Period in American History (New Haven: Yale University Press, 1934-38), vol. I. pp. 454-59.
  2. George Lee Haskins, Law and Authority in Early Massachusetts; A Study in Tradition and Design (N. Y.: Macmillan, 1960), pp. 107-09; also see Jonathan Ned Katz, Gay/Lesbian Almanac (NY: Harper & Row, 1983), pp. 60, 171, 177, 215.

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