THESE Lewdnesses are so detestable, that nothing needs to be said to increase their Horror: for Nature suffers almost as great a violence in hearing of them, as in te perpetration. It is wonderful, indeed, how it ever came into the thoughts of Men to commit them: but, as the Apostle says, (Rom. 1.20-28.) when they gave themselves up to Idolatry, God gave them up to vile Affections; and the Devil put them upon going as much out of the way for wickedness, as he had brought them to do for their Religious Worship. They had changed theglory of the incorruptible God into Images of corruptible Men and Beasts, for Adoration: and therefore He left them to debase themselves; and turn the Channel of their Lusts, as well as their Devotions, from what was natural, to what was abhorrent from Nature; to their own Sex, and to brute Beasts.
SECT. I. Of SODOMY.
THE former of these Crimes, (which takes its name from Sodomy,) is the unnatural Conjunction of Men with Men or Boys: and as we [p.180] find in Sccripture it was very early practised; so we read in Histories, &c. how shamefully it prevailed in after Ages, even amongst the politest Nations; and not only their Great Men, but their Philosophers to indulged in it. However, there wanted not Laws against it, here and there, during the imes of Heathenism: and such Laws are necessary still; forwith infinitely greater Scandal, we must say, this Practice (abominable as it is) has had and has its Followers in christian Countries, and too many of them in our own.
BUT first, let us see how it was punishable amongst
The JEWS.
LEVIT. XX. 13. If a Man lie with Mankind, as he lieth with a Woman, both of them have committed an Abomination: they shall surely be put to Death; their Blood shall e upon them. Both Parties were, by this Law, to be stoned to Death; according to the Jewish Interpretation (so often mentioned) of Their Blood shall be upon them. So Selden also, De Synedriis, L. x. c. 13. p. 539. & Misna, Tit. Sanhedrim, C. 7. k. 4. But a Proselyte of the Gate was to be beheaded. (Seld. de Jure Nat. & Gent. L. 7. c. 6. p. 813, 814.)
SODOMY attempted by violence, might be resisted by killing the lewd Aggressor. See Chap. Rape. p. 160.
AMONGST the Heathen, our first recourse is to
The SPARTANS.
WITH them, it was permitted (says my Author [Plutarch, in Institutis Laconicis. p. 237.], to place a particular Affection upon young Lads, for the good Dispositions and Endowments of the Mind appearing in them: but looked upon as highly dishonorouable, to transfer this Love from the Mind to the Body by any indecent Caresses. And whosoever was accused of embracing them lewdly, was held Infamous, as long as he lived.
The ATHENIAN LAWS.
Provided, [Aeschines, in Timarch. p. 262. Edit. H. Steph. p. 3.] that if any of their people offered a Contumely (or Abuse) to a Yougn free-born; (and such a Contumely, says the Orator just before he cites this, He offers, who hires him for his Lust); He should be accused before the Thesmothetae, and stand his Trial. If he were convict, they might either put him to Death or fine him, at discretion. If the former; he was delivered to the Undecim Viri [or Sheriffs], and put to Death the same day. If only fined; he was to pay it within eleven days after Judgment, if unable to pay at present; and to be imprisoned till he did pay. The like Prosecution to be against those who corrupted the body of a Slave. [p.181]
THEY provided also; [AEschines in timarch. p. 262. Edit. H. Steph. p. 2, 3.] That if any person, whether Father, or Brother, or Uncle, or Guardian, or Master should prostitute a Youth to another Man's Lust, no accusation of Impurity should lie against th4e Youth; but against him that prostituted, and him that had hired him for such lewd purposes: and these should both of them incur the same punishment. Nor should the Boy, who had been thus prostituted by his Father, be obliged when he grew up, (as Nature and the Law would otherwise oblige him), to contribute any thing towards his maintenance, or so much as to afford him Lodging: but common Decencies he was to pay him; and when he died to bury him.
THE Punishment of such Parent, Relation, or Master as should prostitut4e Youths to Sodomy, is not here specified in particular. But by another Law, mentioned in the same Oration of AEschines and to be found in its proper place in this Work, Chap. III. k. 4. p. 25.) All Pimps for Lewdnesse, (and consequently these, as well as any else), were to suffer Death uponConviction: and in the present Case (by the Law above recited), the lewd Sodomitical Actor was to suffer the same (whatever it was), that the Prostitutor should be Sentenced to. The Punishment was generally Death, says Petitus [Petitus de Legib. Atticis. L. 6. Tit. 5. In Comment. suo.] upon this Law: tho' he seems to doubt whether it was constantly so: because of the Clause here added, discharging the Son, when he grew up, from the Obligation of maintaining or relieving such an unnatural Father. But perhaps this Clause might be a provision, only in case no Information against the Father should be laid, and so the Crime not prosecuted: that nevertheless, the Son thus injured might remember it afterwards; and the Father, tho' he had escaped the Severity of the Law, might at least be punished by the withdrawing that filial Duty and Affection, to which he had very justly forfeited his claim.
IF a Person had Voluntarily prostituted Himself he was as infamous as the Laws could make him. [AEschines in timarch. p. 263.] He was incapable of being ever chosen into the number of their chief Magistrates, or Archons; incapable of ever exercising the function of Priesthood; or being a Syndic for the People, to argue for the abrogation or enacting of Laws; he could sever in no Magistry or Command belonging to that State, determinable either byi Lot or Suffrages, within the Limits of Attica or without; He could be no whither sent Embassador, or public Herald; His Opinion was not to be heard in any public business; He was not to come within their Temples; He was not to wear a Garland, in any Procession of the People where they were used to do so; nor to enter within the Rails or Gates of the Forum. If he transgressed any of these Limitations, he was to dye for it. This Law was Solon's: [p.182] and, says the Orator, immediately after the recital of it, it was made to deter young Men from being so easy in admitting a lewd Abuse of their Bodies.
PLATO,
In his Prescriptions for the forming of Laws, is very strenuous against the Crime, tho' he does not prescribe the Punishment.
[Plato de Leg. L. 8. p. 841.] Let no Man dare (says he) to case unfruitful Seed upon his own Sex, contrary to nature. By no means: for we utterly forbid all such Conjunctions betwixt Men and Men.
The Ancient GERMANS
Had a Punishment, not improper, for those who had thus dishonoured their own bodies between themselves. For Tacitus [Tacitus, de morib. Germ. k. 12.] says, they plunged them into some deep Bog, or Slough, and casting a Hurdle of Rods upon them, (which, probably, they also trod upon when it was laid there), stifled themwith the Mud and Dirt. Lipsius, in his Note, and his Excursion upon this Passage, is in a mighty Heat, to justify the ancient Germans from having any such thing as Sodomy amongst them; and therefore would read the Text, not Corpore, but Torpore infames, without citing any one Manuscript to authorise his Reading: but Pichena and Salinerius have in their Notes sufficiently answered him. And indeed, that Argument of Lipsius, that Sodomy is the Vice of an Eastern, or a southern Climate, and not of the cold Northern Countries, is far from being a good one: for, to our Regret and Horror, we find it even in these Northern parts of Europe at this Day, notwithstanding all the Light of Christianity. And if so, surely it can be no Hardship to suppose, that the old Heathen Germans might have some Instances of this Guilt amongst them; tho; even then, they shew'd their Detestation of it by the Punishment.
The Ancient ROMANS.
Amongst them we have the Scatinian, or Scantinian Law: of which Manutius [Manut. de Legibus Rom. (ad calcem Rosini), p. 836. b.] gave the following Account. That it was made by C. Scatinius Aricinus, Tribune of the Commons, against such as sollicited another's Chastity, or prostituted their own: that the Punishment was a Fine of ten thousand Sestertii; (about 78l. 2s. 6d. of English money): and that this Law was many years before the Julian. The Antiquity of the Law is not disputed: but the Account they gave of the Design of it, is confused, and too general. We have the Authority of Juvenal, (Sat. II.) and Quintilian, that the Case of Sodomy was particularly concerned in it. The Derivation of the name of this Law, and the Penalty infliced by it, are both of them disputed.
SOME will have it derived from C. Scantinius Capitolinus: who either was punished by it; or gave occasion for the making of it, by having earnestly sollicited to his Lust the Son of M. Glaud. Marcellus, [p.183] thn AEdile, and hisColleague. The Youth, [Plutarch. in Marcello. p. 298, 299.] rejecting these sollicitations, acquainted his Father, who impeached Scantinius before the Senate. The Criminal appealed to the Tribunes of the People, in order to evade a Trial: but They, abhorring the Fact, rejected his Appeal, and would not undertake the protectiono f him. The Senate, therefore, tryed and condemned him, and set a severe Fine upon him. (Marcellus's first consulate, was, according to Helvicus, A.U.C. 531. Before Christ 220.)
THE Dispute is as great, what was the Penalty by this Law. Menochius gives his opinion, [Menoch. de arb. quaest. L. 2. Cas. 286. n. 10.] that it was Death. Brissonius's Judgment is the same, [Brisson. Ad Leg. Jul. de Adult. k l.] exploding theirs who supposed it to be pecuniary only. But such as think they are not mistaken, in concluding, as Manutius and Rosinus do, that it was pecuniary, and in that Summ [sic] they mention, have the Authority of Quintilian to bear them out; [Quintil. Inst. Orat. L. 4. c. 2. p. 304.] in a Case which he puts thus: Ingenuun stupravit, & stupratus se suspendit: non tamen ideo Stuprator Capite, ut Causa Mortis, punietur; sed Decum milliae, quae poena Stupratori constitute est, dabit. Brissonius willhave this to be only an usual Fiction of the Schools: but the Orator speaks of it positively, as poena constitua; and referring to the same case elsewhere, [Inst. Orat. L. 7. c. r.] repeats the very same Summ, witht he same Remark upon it, Quae poena huic Crimini constituta est. The learned Objector has recourse, indeed, to the Story of C. Laetorius, a Person of considerable Birth and Valour, who having attempted to force a young Gentleman in the Camp to his unnatural Lust, was put to Death for it. [Excerpta ex. Dion. Halicarn. c. 3. Edit. Hudson.] "The Tribunes of the Commons (says the Historian) resenting it as a public Injury to the City, appointed him a public Trial, and by the suffrages of all the People condemned him to Death." Valerius Maximus says, [Val. Max. L. 6. c. 1. – 11.] He killed hiimself before Judgment given against him: but that the People, nevertheless, to shew their Detestation of his Crime, proceeded to pass their Sentence upon him. Now whether this Sentence was by the Scantinian Law, is a Question. It might be extra ordinem: or perhaps the Law was not then made.
BRISSONIUS grants however, that the Scantinian was not abrogated by the Julian Law, whatever was the penalty of it: for Domitian put it in Execution after, as Suetonius tells us, in Domitiani. c. 8.
AS to other Instances among the Romans, of their Resentment of this Crime, we have several. Val. Maximus [Val. Max. L. 6. c. 1. k 9.] relates, that the Senate threw C. Plotius into Prison, for attempting Sodomy with T. Veturius, a Youth who had the misfortunate to be very much in Debt to him. Livy tells the like story of L. Papirius [Livii Hist. L. 8. c. 28.], for his Attempt upon C. Publilius, his Debtor. But what punishment followed, neither of them inform us. Both these Instances were above 300 years before the Nativity of Christ. [p.184]
THE like Imprisonment for Sodomy, [Val. Max. L. 6. c. 1. k. 1. Sodomy. k. 10.] Cornelius, an Officer of great Distinction in the Army), suffered, by order of C. Pescennius; and the Tribunes, to whom he appealed, refusing to intercede for him, he was kept in Prison till he died.
C. MARIUS, [Plutarch. in C. Mario. 0. 413.] in a public Trial in his Camp, not only acquitted, but highly commended, and crown'd with a Garland,, a young Gentleman named Trebonius, who had killed that General's own Nephew, C. Lucius, for an Attempt of Sodomy upon him.
THE Emperour clodius Albinus [Capitolin. in Albino. p. 235.] how lewd soever he was with Women, always astained from, and was an eager Prosecutor of such as were guilty of unnatural Lewdnesse.
ALEX. SEVERUS [Lamprid. in Alex. Severo. p. 350.] was inclined to have absolutely forbid this practice, and put the Laws in Execution against it; as one of his Successors, Philip, afterward did: but he was afraid it would occasion more Lewdnesse in private: because of the greater Gust Men have for what is forbidden them. A poor reason this, for tolerating such a Crime: but he made some Amends for it, by his Severity to the Catamites of his Predecessor Heliogabalus; [Ibid. p. 359.] for he ordered them to Deportation.
The Roman CIVIL LAW.
THE Pathic, at least, was infamous by the Praetorian Edicts: as may very well be inferred from Ulpian; who says, that such an one was incapable of being an Advocate for any Man in Courts of Law and Justice. [ff. De postulando. (L. 3. Tit. 1.) l. 1. k. 6.] removet autem [Praetor] à postulando pro aliis, & eum qui Corpore suo mulliebria passus est. The Emperours Constantius and constans, in their Law cum vir nubit, which I shall give at large in its due place), expressly call such Infames: and this I take to be no new Sentence of their own, but merely declarative of what the Common Laws of the Empire had made them long before.
AMONGST other Consequences of this, one was, that they could not devise by Will, except a small part of their Substance. Paulus says this directly of the Pathic; [Pauli Sent. L. 2. Tit. 27. k. 12. (Edit Cujacii, Par. 1586. &c. Et in Collar. Leg. Mos. & Roman. Tit. 5.] Nec Testamentum ei ex majore parte facerelicet. Menochius says, [Menoch. de arb. ?Quaestion. Cas. 286. n. 21.] the Law is still against them in this particular, but more extensively; for he calls them Intestabiles, such as can make no Will at all: for which he cites no less than a dozen modern Lawyers. And Alciat extends it [Alciat. in l. 101. ff. De verb, signif. (Operum tom. I. col. 258.] both to the Agent and the Pathic; Notatur ipso Jure uterque Infamia: and adds, that if they happen to dye before they are accused (of prosecuted) for the Crime, their Testament is invalid in Law; for the Law calls them Improbi & Intestabiles.
SODOMY with another Man's Servant, or perswading him thereto, was actionable before the Praetor. ff. de Servo corrupto. (L. II. tit. 3.) l. 1. (cited before, Chap. IV. Stuprum. k. 2. For they will reach to this, as well as Lewdnesse with them in a natural way. [p.185]
IN the Case of persons Free, the Julian Law De Adulteriis & Stupro took Cognizance of this Crime, including it under the general name of Stuprum. vid. INST. L. 4. Tit. 18. k. 4. &. ff. Ad Leg. Jul. de Adult. l. 34. And consequently it was punishable as Stuprum was: that is, [Inst. L. 4. Tit. 18. De publicis Judiciis. k. 4. v. Poenam autem.] if the Criminals were of better Rank, by the Confiscation of half their Substance; if inferiour people, by corporal Punishment and Relegations. The former branch of this, [Pauli Sent. L. 2. tit. 27 De Adult. k 12. Edit. Par. 1586. &c. Et in Collat. Leg. Masaic. & Rom. Tit. 5.] we have in Paulus also: Qui voluntate sud Stuprum, flagitiumque impurum patitur, diminidad parte honorum suorum multatur; nec testamentum ei ex majore parte facere licet. From hence it is plain, that Death was not the punishment of Sodomy by the Julian Law, as Augustus framed it; however a passage [Inst. L. 4. Tit. 18. &I#107; 4. Item LexJulia de Adulteriis coercendis; quae non solum temeratores aliemarum Nuptiarum Gladio punit, sed & eos qui cum Masculis nefandam libidinem exercere audent.] of Justsinian, in his Institutes, has been misunderstood. For, as Menochius observes, Lex Julia de Adulterissi there, is a general term: not limited to that Constitution made by augustus Caesar; but including all the Alterations in it by later Emperours, who had indeed assigned the Punishment of Death for Sodomy, and for Adultery too.
AND yet it is as plain, that long before the governing Powers of that Empire embraced Christianity, it put the Virtue of their Magistrates to the bolush, to find the Law so tender and gentle to so vile a Crime: which therefore as the ordinary punishment was very disproportionable,) they frequently punished extra Ordinem, and that in the severest manner, by Death. [ff. De extra. Crim. (L. 47. Tit. II.) l. 1. Sollicitatores. k. 2. Qui Puero.] Qui puero Stuprum &c. — perfecto flagitio puniuntur Capite; imperfecto, in Insulam deportantur.
IF the Sodomy were committed by way of Rape or Violence, it was punished (as other Rapes) with Deportation, by the Julian Law De vi publica. Punitur [ff. Ad Leg. Jul. de vi publica. (L. 48. Tit. 6.) l. 3. In eadem. k. 4. Praterea.] hujus Legis poena, qui Puerum, vel foeminam, vel quemquam per vim stupraverit; says Marcian. But extra ordinem, it was Death. So Paulus: [Pauli Sent. l. 2. Tit. 27. De Adult. k. II. (Edit. Cujacii. Paris. 1586. &c. Et in Collat. Legum. Mos. & Rom. Tit. 5.] Qui masculum liberum invitum stupraverit, capite punitur. Tho' poena Capitis, among the Roman Lawyers, frequently implied no more than Deportation; it is evident, that Paulus sometimes uses it in the strict and literal Sense: as in Sent. l. 5. Tit. 25. Ad Leg. Corn. Testamentariam. k. 2. And ff. De extr. Crim. l. 1. k. Qui Puero just above cited: in both which places he expressly opposes Capite puniuntur to Deportation. And therefore I so understand him here: for if Death was the punishment extra ordinem for Sodomy by consent, much more may we believe it so to have been where Violence enhanced the Crime. In case of such sodoomitical Rape, no Prescription of Time could screen the Offender from Prosecution. ff. Ad Leg. Jul. De Adult. l. 29. Mariti. k. 9. Eum autum..
BUT by later Constitutions, those of Christian Emperours, Death is assigned the ordinary punishment of Sodomy, whether committed by Violence, or Consent. Constantius and Constans, made it so by the following Law. [p.186]
CUM [Cod. L. 9. Tit. 9. De Adult. l. 31. Cum vir nubit.] vir nubit, (i.e. muliebria patitur,) in foeminam* [*In foeminam &c. Dictum est Attice, pro tanquam foemina, instar foemina, & similiter. Jae. Goth. in h. leg. in Cod. Theod. L. 9. Tit. 7. l. 3.] viris porrecturam, quid cupiatur, ubi Sexus perdidit locum? ubi Scelus est id quod non proficit scire? ubit Venus mutatur in alteram formam? ubi Amor quaeritur, nec videtur, (i.e. invenitur?) Jubemus insurgere Leges, armari Jura Gladio ultore, ut exquisitis poenis subdentur Infames, qui sunt, vel qui futuri sunt rei.
THE punishment appointed here, is Beheading. And Clarus upon this Law determines, [Clari Sent. L. 5. k Sodomia. v. 4. Sed quaero.] that Jure Civili, 'tis Death both to the Agent and Patient; which (says he) is the common Conclusion: and tho' the Text seems to appoint beheading; yet by Custom, Sodomites are burnt. Menochius says the same, [Menoch. de arb. quaest. Cas. 286. n. 14. 16.] that burning them has prevailed by use; and refers us to the municipal Laws of Milan, and several other parts of Italy, France, and Spain; to Matth. de Afflictis, ad Const. Neapol. Rubr. 42. n 13. Papon. Arrest. 6. L. 24. Tit. 10. Who gives an Instance from the Parliament of Paris also; and to Ignatius Lopez, in Addit. ad Prax. Crim. Bern. Diaz. c. 86.
James Gothofred, upon this Law where it stands in the Theodosian Code, endeavours to justify the Custom of burning them, by taking Gladio ultore only for general Words; and Exquisitis poenis, to signify the worst kind of Death; that is by fire, says he. 'Tis unaccountable to me, that this learned Civilian should think himself obliged thus to strain the wodds of Cosntantius, to justify a punishment, which evidently had its rise from a later Law of Valentinian II, in that very Code he writes upon. A.D. 390. Valentinian expresses himself as follows, to Orientius Governor of Rome.
"Let us no longer suffer unmanly Wretches with their effeminate Lewdness to stain the City of Rome, the Mother of all Virtues; and that rustic strength derived from our Ancestors, to be so impaired and broken by softness, as must be a Disgrace to them, and a Reproach to us. Let your laudable Wisdom therefore take Care, that all those, whose flagitious Luxury it is to despise the Honour and Distinction of their Sex, and expose the body of a Man to such impressions aas are only fit for Women to receive, be apprehended, as their prodigious Wickedness requires; and dragged out, (abominable to be spoken!) from all their Sodomitical Bawdy-Hosues, and burnt in the sight of the People: that every body may be made sensible, that the receptacle of a Manly Soul is too Sacred to be so abused; and that n9o Man, without the severest punishment, shall affect a Sex thast does not delong to him, while he scandalously lays aside his own." [C. Theod. L. 9. Tit. 7. De Adult.. l. 6.] [p.187]
IT'S true, this Constitution, being omitted by Justinian, is not now received with any Authority of Civil Law: and so that former, of Constantius and Constans, must take place; as the only one remaining still in force, which prescribes the manner of Death to such offenders. For the two later Novels of Justinian hiimself, (LXXVII, and CXLI,) are nothing to this purpose; and too little to our purpose in general, to need reciting. But tho' Constantius's Law directs Beheading, yet, (as I said before) in practice, Burning has obtained, from the above-recited Edict of Valentinian. And how it came to do so, will be plain enough; if we consider, [Jac. Gothofr. Prolegom. ad Cod. Theod. c. 3. c. 5. & c. 7.] that the Theodosian Code (wherein this Edict stands, and where it had the full force of Law,) was received thro' the whole Empire as soon as it was published, A.D. 438. And tho' the next one of Justinian (ninety six years after) put an end to its Authority in the East, it still preserved Respect and Credit in the West: where the Breviary compiled by Alaric the Visigoth, from this Code of Theodosius, with those of Gregorius and Hermogenes, and from the Sentences of Paulus, the Institutes of Caius, and the Novels that were then received; published with his own Royal Sanction at Thoulouse, A.D. 506. (in which Breviary also, this Edict of Valentinian was inserted;) so generally prevailed, that it was here the only Standard of Civil Law for several Ages. In Spain it continued no longer than the year 657, when Chindasuinthus, to make way for his own Laws, forbad it. but in France it had a concurrent Jurisdiction with the Salic, Gothic, and Burgundian Laws; the Romans there being still allowed by their Masters the Francs to be governed by it. And every where else, where the Civil Law was at all regarded, no other Compilation was taken notice of: insomuch that (as Gothofred tells us,) "Whatsoever the Writers the Writers of the middle Ages cite as from the Laws of Theodosius, or the Roman Law, is taken from that Breviary." Whereas [Duck. De usu & Authorit. Jur. Civ. Rom. L. 1. c. 5. k. 11, 13.] Justinian's Alterations were never of any Authority in Italy, (or any other part of the West,) till five or six hundred years after his own Death; that is, till about the middle of the twelfth Century. Now the Theodosian Code, or Alaric's Breviary compiled out of it, being in such Credit and use all over the West; and along with it the Edict of Valentinian, that Sodomites should be burnt; 'tis no wonder, that the method of burning them should be adopted thence into the municipal Laws of Italy, or be received in France, and almost every where remain a Custom in these parts of Europe; as derived from the practice of foregoing Ages, for 750 years before Justinian's restraining things to the Law of Constantius was so much as known amongst them.
BURNING, therefore, is sitll the way of punishing such Criminals; but Bajardus adds, [Bajardi Addit. ad Clarum. k. Sodomia. n. 7.] they are not to be burnt alive. For which he refers to Covarruvias; [Var. Resol. L. 2. c. 10. n. 9.] and says it is the general Custom, to strangle them first, and then set fire to the Body. Damhouder [Damhoud. Prax.Crim. c. 96. n. 25.] differs a little; and says, that some are burnst alive, and others are first strangled, according to the quality of Persons, facts, [p.188] and Circumstances: referring, I suppose, to the practice amongst hjis Flemings. Bajardus adds farther, [Bajard. ubi supra. n. 13.] that if the Delinquent be very young, he is excused from the ordinary punishment, (Death,) and has a milder Sentence. So Menochius also, [Menoch. de arb. quaest. Cas. 286. n. 29.] grounding upon the general supposition made in l. 37. ff. De minioribus, of Compassion for the youth of a Criminal.
I WILL only just take notice of a Punishment extra ordinem, (of which we are informed by Zonaras, [Zonaras. Tom. 3. p. 52.] inflicted for Sodomy by the great Justinian; and that was, that he ordered many such Criminals to be gelt.
THE next Observation is, that not only the Crime compleat and perfected, but the Endeavour also, the Attempt, and the solliciting to it is punishable. So Ulpain represents the Law; [ff. De Injuriis,, (L. 47. Tit. 10.) l. 9. Sed est quaestionis. k. 4.] Si quis tam foeminam quam Masculum impudicos facere adtentavit, Injuriarum tenebitur. But this gave only an Action for the Injury. Menochius says, [Menoch de arb. quaest. Cas. 286. n. 27, 28. & Cif. 360. n. 59.] the mere Endeavour or Attempt is punishable; and the received opinion is, that it shall be punished extra ordinem, at pleasure of the Court. His Authorities are, Accursius [in l. Qui Puero. ff. De extra. Crim.] M. de Afflictis [Ad Const. Neapol.in rubr. de Adulteriis. n. 15.] Socinus the younger, [in Cons. 7. n. 1. L. 3.] & Jul. Clarus, [Pract. Crim. k Sodomia. in sin.]
THIS poena extra ordinem, in the case I am now speaking of, used to be Deportation. So Paulus tells us; [ff. De extra. Crim. (L. 47. Tit. 11.) l. 5. k 2.] Qui Puero stuprum &c. — persuaserit, & — flagitio imperfecto, in Insulam deportatur. But Deportation being now out of use, the punishment is arbitrary, says Menochius, whom I cited before. [Cas. 286. n. 28.]
BUT if Boys, or young Men [Damhoud. Prax. Crim. c. 96. n. 18.] are stollen away or carried off by force for such vile purposes, Damhouder's opinion is, (and probably the modern practice,) that the ordinary punishment shall take place; the Criminal shall be burnt as a Sodomite, tho' the Sodomy was not actually committed.
THE Person attempting Sodomy [Bajard. Add. ad Clarum. k Sodomia. n. 15.] may be freely slain (says Bajardus,) by the person attempted. He might have added, by the Parent, Guardian, or Master of the person attempted, (and needed not to have cited modern Authorities for what he does say;) for the Law its self, [ff. Ad. Leg. Corn. de Sicariis. (L. 48. Tit. 8.) l. 1. k. 4. Item.] the Rescript of Hadrian is plain enough; Eum qui stuprum sibi vel suis per vim inferentem occidit, dimittendum.
THE Accessories to such a Crime as this, shall undergo the same punishment with the Principals.
AS He that knowingly lends his House for the committing it. Qui domum suam, ut Stuprum Adulteriumve cum aliena Matrefamilias, vel cum Masculo fieret, [ff. De Adult. (L. 48. Tit. 5.) l. 8. Qui domum.] sciens praebuerit, — cujuscumque fit conditionis, quasi Adulter punitur. And the Law extends also to such as are Pimps and Perswaders in this matter; (ad eum [Ibid. L. 12. Hac verba.] qui suasit:) who, according to [Clari Sent. L. 5. k ult. Qu. ii.] [p.189] Clarus, shall have the same punishment with the principal Delinquents, if the Crime was not likely to have been committed, but thro' their Counsel or Perswasion. Bajardus agrees [Bajard. Add. ad Clarum. k. Sodomia. n. 11.], that in Practice, as well asLaw, those who give convenience for Sodomy in their Houses, or receive any Reward to promote it, are punished as Sodomites are; that is, they are burnt.
ANOTHER Law, cited in part against attempting the solliciting, affected not only the Principal, but those that were employed by him to sollicit;; who by Corruption drew off the Servant or Companion that attended the Youth; or carried anypresent, or used any perswasions, to corrupt the Youth himself. All these were punishable extra Ordinem, with Death, if the Crime were perfected; and tho disappinted, with Deportation: the corrupted Servant or Companion was to dye in either case, for his Treachery. [ff. De extraord. Crimin. l. 1. Sollicitatores. k. 2.] qui puero Stuprum, abducto ab eo, vel corrupto Comite, persuaserit, — quidve impudicitiae gratia fecerit, donum praebuerit, pretiumve quo is persuadeeat dederit, perfecto flagitio puniuntur Capite, imperfecto in Insulam deportantuir. Corrupti Comites summo supplicio adficiuntur.
In the GREEK Empire,
THEIR Laws against this crime were much the same with the Roman. A Pathic was never afterwards [I am omitting Disney's references to Greek sources.] admitted to plead or sollicit Causes in any Court of Law or Justice; unless it could be made appear, that he suffered such an Abuse by Violence.
BUT this was only a Provision in case he escaped legal Punishment: for both the Agent and Patient in Sodomy were to suffer Death for it; and that sort of Death prevailed, as we learn from Harmenopulus,) which Justinian's Code had left in force from the Law of Constantius, viz. Beheading. But if the Pathic were under Twelve years of Age, his Childhood excused Him from Punishment.
IF Sodomy were attempted by Violence, the injured person or Friends, might kill the Aggressor; as by the Roman Law of Hadrian.
SOLLICITING to Sodomy, and all pimping or intriguing for it, was severely punished, by a Law which they borrowed (and indeed translated) from that of the Romans, Qui Puero Stuprum &c. cited in the Conclusion of our Account from the Civil Law. If the Crime were perfected, these Sollicitors and Accessories suffered Death: if disappointed, they were banished for ever. The bribed or corrupted Companion, who should have guarded the Youth, was to dye for it in either case. [p.190]
The WISIGOTHS
Had a Law of Chindasuindus, [LL. Wisigoth. L. III. Tit. 5. l. 5.] made about the year 645, which appointed as follows. That the Agent and Patient should both of them, upon conviction, be immediately Castrated; and after that, be delivered to the Bishop of the Diocese wherein the Fact was committed, to be sent into different Monasteries, and kept in close Custody there. But if a Person had been forced to the Crime, and became afterwards the first Detector of it, he was excused from all Punoishment. A married Man, guilty by Agency or Consent, lost his Effects immediately to his Children, or Heirs at Law: the Wife, retaining her Dower, and all possessions that belonged to her, was at liberty to Marry another Man, when and whom she pleased.
Amongst the FRANKS,
The Capitulars of Charles the Great and his Son Lewis have a Constitutin upon this Subject. But the most of it being only an Harangue against the Sin, I shall take no notice of any but the latter part of it; which was added, (says Baluzius, in his Notes, Tom. II. col. 1257.) by the Emp. Lewis. "We know, (says he) [Addit. IV. ad Capitul. Car. M. & Lud. Pii. c. 160.] that the Roman Law, the Mother of all Humane Laws, ordered such Criminals to be burnt." (Observe here, what I said before, of the Authority of Alaric's Breviary, and therein Valentinian's Law upon this matter, in these Western parts.) Therefore, "we would have you know, that we will punish both the Agent, and free Consentient in this Crime, according to the Roman Law.
The GERMANS.
The Emperour OTHO I [Othon. Imp. Edicta Romae proposita. k. V.] had the following Edict, A.D. 966. agreeable to the former. "That whosoever should be so far carried away with the fury and licentiousness of his Lust, as not to spare the Bodies of free Men, should for such a detestable Crime be publickly burnt." [p.191]
SECT. II. Of BESTIALITY.
IN all the Heathen Antiquity of Laws, there is a Silence much to be wondered at, upon this most brutish species of Impurity. Either it was not so much as practised amongst them; and that would be a horrid Reflexion upon Nations which profess Christianityi, where undoubtedly it has been practised: or if it was, 'tis odd they took no notice of it in their Laws; being a Crime as notoriously against the Light, and to the Confusion of Nature, as any can be. but whatsoever may have been their reason for conniving at it, we may conclude it was in use with them, and very early too, from the early Provision which God made against it, when he gave Laws to his peculiar People.
The JEWS
THESE were selected from the other Nations of the World, which continued heathen; and guarded by many Judicial, as well as Moral Constsitutions, against both the idolatrous Worship, and the vicious practices of their Neighbours. To them was given a very strong Law against Beastiality.
LEVIT. XX. 15, 16. If a Man lye with a Beast, he shall surely be put to Death*, and ye shall slay** the Beast. And if a Woman approach unto any Beast, and lye down thereto, thou shalt kill the Woman and the Beast: they shall surely be put to Death; their Blood shall be upon them.
(*) Shall surely be put to Death. Tho' this stands absolute, without Addition; and therefore, by the Jewish Rule, should signify Strangling: yet, as Bp. Patrick well observes, the words Their Blood shall be upon them, in v. 16. relate to the Man, mentioned v. 15. and to the Woman in the said 16th. v: for a Beast is not capable of punishment, and therefore those words cannot extend to it. So that the Death for these offences in either Sex, was Stoning. And such was plainly the Practice of their Courts: Lapidandos fuisse, [Selden. De Jure Nat. & Gent. L. 7. c. 6. p. 813, 814.]
(**) And ye shall slay the Beast. This, as was hinted before, could not be for any punishment to the Beast; in which, being a subject incapable of Moral Law, neither the Observation nor Violation thereof can be supposed. But the Talmudists [Selden. De Jure Nat. & Gent. L. 1. c. 4. p. 54.] account for it thus: that it was done, lest the sight of the Beast, made remarkable by such a lewd Conjunctionn with it, should irritate the Lust of somebody else to offend in the same manner; and by that means bring himself to Destruction, as the former Criminal had. And also in tenderness to the Criminal punished; that after he had suffered Death, his Name might not bear the Infamy and Scandal of such a fact, which would rise afresh upon him every time the people set their Eyes upon that Beast. Bp. Patrick adds another reason; to prevent monstrous Births: and another from Bochart; that the Beast was killed, as an [p.192] Instrument in the Crime: just as a Forger of Deeds is hanged with his Pen and counterfeit Seals, &c. And this (says the Bishop) is useful too for an Example; tho' not to other Beasts, yet to Men: whose concern it is to consider, that if Beasts were not spared, who were not capable of sinning, what would become of them, who committed such Crimes against the kown Laws of God, and the Impressions of Nature its self. In truth, the msot probably reason of all, is, to set a Brand of Horror and Detestation upon Crime. This agrees with Bochart; and wth Philo . . .; and Mr. Selden himself [Seld. de Jure Nat. & Gent. L. 1. c. 5. p. 71.] gives in to it, in this and the like Cases. But Philo agrees also with the first Reason of Bp. Patrick: for his whole Sentence runs thus, The Beast was slain "because it had been an Instrument in such odious Crimes; and withall, that it might bring forth nothing monstruous or reproachful, as uses to proceed from such abominable mixtures."
THE ROMAN, or CIVIL Law supplies us with no Provisions upon this Head; unless those against Sodomy might be strained to all unnatural Conjunctions either of Sex or kind.
BUT in the EASTERN Empire, we meet with one, (which must be later than Justinian, that such as made use of Brutes for Lust, should have their Penis cut off.
THE Capitulars of Charles and Lewis, among the FRANKS, speak several times of this Crime, and inveigh agianst it: but Penance was got most into fashion then. However, we have one Chapter there, which threatens a Civil Punishment: where [Capitular. car. M. & Lud. L. VII. c. 356.—Quisquis ex his unum egerit, aut Capite puniatur, aut (si ei vita concessa fuerit,) juxta Ancyrani Concilii sententiam, quae in Capitulo decimo sexto continetur, poenitentiam veraciter agat. (Baluz. Tom. I. col. 1101.] speaking of Bestiality, Incest, and Sodomy, as censured by the ancient Council of Ancyra, the Law determines; "that whosoever should be guilty of any of these, should either dye for it; or, if his Life were granted him, perform full Penance, according to the 16th. Canon of the said Council. That Council was five Ages before Charles the Great; and enjoined a Penance of Twenty or Thirty Years continuance.
THIS is all I have met with, down to the Period I restrain my self to, in the Antiquity of Secular Laws, both upon the present Article, and all the other foregoing Instances or Kinds of Lewdnesse. So that now I have finished the First Title of this Work, and must proceed to those remaining; which yielding less variety of Subdivisions, and Political Constitutins upon theem, will probably, all together, take up less room, than this one Title of Impurity.
CITATION: If you cite this Web page, please use the following citation:
SOURCE: John Disney, Vicar of St. Mary's in Nottingham, A View of Ancient Laws, against Immorality and Profaneness, Cambridge, 1729, Chapter 10.
Rictor Norton (Ed.), "Of Sodomy and Bestiality" Homosexuality in Eighteenth-Century England: A Sourcebook. 30 January 2011 <http://www.rictornorton.co.uk/eighteen/1729disn.htm>.
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