Thursday, June 16, 2005

   Medieval Basis of Modern Law
Essays by Rictor Norton on the Historical Roots of Homophobia from Ancient Israel to the End of the Middle Ages
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5 The Medieval Basis of Modern Law
Although the Middle Ages, extending from about the twelfth through the fifteenth centuries, is not a single cohesive epoch, the copious citation of trials and laws would merely accumulate evidence of homophobia rather than give us insight into its causes. Throughout this period antihomosexual attitudes and stereotypes changed only in so far as they became more rigid, and were used increasingly to bolster certain social institutions such as the papacy and state governments. The real reason for the persecution of the Templars — the most powerful crusading order of its time — derived from political and economic hostility, greed and envy. The Church and the State defeated a real threat to their authority, confiscated their great wealth, and achieved an object lesson which struck terror into the hearts of much less powerful potential enemies. The unquestioned authority of Church and State was reaffirmed.

Since medieval asceticism was virtually identical with an obsession about sex, it was inevitable that charges of heresy and treason were always accompanied by charges of sexual deviation. Popular writers such as Dante used the same technique to attack their personal enemies. It is embarrassingly clear that certain men are condemned as sodomites in his Inferno, Canto XV, simply because it was a convenient smear tactic. Most of those literary men and clerks assigned to the seventh level of hell were Dante's political opponents; some, such as Guerra, Rusticucci, Aldrobandi, Latina, and perhaps Borsiere, were Guelfs, those responsible for Dante's exile from Florence.

Nor should we ignore the role that homophobia plays in the denunciation of intellectual nonconformity as well as religious heresy. D. Stanley-Jones has interestingly argued that a hidden battle over homosexuality paralleled the struggle to introduce Aristotle at the University of Paris in the thirteenth century. Aristotle was tolerated and eventually accepted as the lesser of two evils as opposed to the Neoplatonic idealism and its associations with Platonic homosexuality. His argument is overstated in lieu of definite evidence, but those of us who have ever worked in an academic department know how effectively a homosexual rumour can damage a teacher's reputation without ever finding its way into a printed record. In any case, at a later date we do know that intellectual heretics such as the Averroists were condemned at the University of Paris and charged with sexual vices. The University of Paris played a major role in the trial of Joan of Arc for heresy, the main charge against her being that she dressed in men's clothing.

The most famous professor at the University of Paris in the thirteenth century was of course St Thomas Aquinas, who in his Summa Theologica established a rational basis for antihomosexual prejudice by defining the peccata contra naturam as the greatest sin of lust, specifically founded upon pleasure rather than procreation. He declared that "right reason" would always see procreation as the purpose of intercourse, and his philosophical condemnation of homosexuality became the precedent for all theological and intellectual discourse upon the subject. His views are the foundation for most modern declarations against homosexual acts by the Church of England and the Roman Catholic Church.

In order for the Church and State to maintain control over what they perceived as a disorderly population, medieval people were increasingly forbidden to deviate from the right path in anything. Religious orthodoxy, political orthodoxy, and intellectual orthodoxy were all firmly bolstered by the savage imposition of sexual orthodoxy. Medieval secular law almost universally deferred to ecclesiastic law, in ever more rigid sanctions.

In French legislation, in Beauvais sodomites were burned and their property confiscated; in Touraine-Angou, they were burned and their goods fell to the local baron. In Italy, in such cities as Perugia, Bologna, and Ancona, lay confraternities were created in 1233 and entrusted with the task of ensuring religious and sexual conformity with particular attention to sodomy. In Perugia, the law provided for 40 men (8 from each of the 5 sections of the city) to investigate and denounce sodomites. At Ascoli Piceno a bounty was given to those who denounced sodomites. At Pisa, people who harboured sodomites were fined 100 lire. At Bologna, whoever dwelt in a building where sodomy was practised might be burnt along with the house. In Sienna, if a sodomite could not pay the 300 lire fine for a first offence, he was suspended by his genitals.

In fourteenth- and fifteenth-century Florence — where men were fond of sodomy to such an extent that the Germans dubbed pederasts Florenzer and the German word for sodomy became florenzen — the laws were precise with a vengeance: pederasts were castrated; consenting boys under 14 were beaten, driven naked through the city, and fine 50 lire; youths between 14 and 18 were fined 100 lire; houses or fields where the act took place were laid waste; men found in suspicious circumstances were presumed guilty; torture could be used to elicit a confession; conviction resulted in burning at the stake. The chief city officials could investigate, punish, and torture in any way they saw fit, and could ban suspects from the city; even songs about sodomy were fined 100 lire. It is not much of an exaggeration to call this a campaign of extermination, although the penalties were gradually lowered toward the end of the fifteenth century, and a fine was often sufficient for those enforcers of the law who were more interested in money than in morals.

The persecution of homosexuals was one of the tools in the repertoire of repressive measures by which the Inquisition strengthened the Church and contributed to the centralization of the papacy. Modern defenders of Christianity, who point out that canon law emphasized the punishment of homosexuals within the clergy, usually ignore the fact that the law confraternities and mendicant orders had a brief to seek out and punish homosexuals in all sectors of the community. The fact that that ecclesiastical authorities turned over the heretics / witches / sodomites to the civil authorities for execution or punishment was of course a pious hypocrisy. The Inquisition's spawn of lay confraternities and the mendicant orders established sexual oppression throughout much of northern Europe as well as Italy, and every secular law justified itself with references to the Church Fathers, Scripture, and the papal decrees. Burning at the stake, and laying waste the fields were sodomy occurred, were directly inspired by the Christian interpretation of the store of Sodom and Gomorrah, and the severity of the antihomosexual secular laws was a Judaeo-Christian inheritance.

The more specific detailing of homosexual crimes and punishments may be due to the rapid rise of political democratization in Italy, the reduced power of the oligarchy and the ethics of the petit bourgeois — though again, the Church's hatred and fear of material pleasures formed the basis of this morality.

The Penitential System had a devastating effect upon the laws of England (and consequently the laws of America). In 960 St Dunstan, Archbishop of Canterbury, began a moral reform of the Church and society, and under his influence ecclesiastical law became the core for civil law. Thus "penances" came to be enforced as "sentences" in the courts of law. The eleventh-century court of the Normal William Rufus and Robert Duke of Normandy was believed to have been rife with homosexuality, and the successor King Henry I set about cleaning it up. At a Council in London he laid down new penalties for "those who commit the shameful sin of sodomy, and especially for those who of their own free will take pleasure in doing so." Homosexual clerics were to be expelled from their orders, and homosexual laymen were to be deprived of their civil rights. Henry's orders were moderated by Archbishop (later Saint) Anselm (himself probably at least a repressed homosexual, to judge by his love letters to several young men), who directed the clergy to exercise discretion: "It must be remembered that this sin has been publicly committed to such an extent that it scarcely makes anyone blush, and that many have fallen into it in ignorance of its gravity."

The first significant reference to civil laws against homosexuality in England occurred in 1376, when the God Parliament unsuccessfully petitioned King Edward III to banish all "Lombard brokers" because they were usurers, and other foreign artisans and traders, particularly "Jews and Saracens," who were accused to having introduced "the too horrible vice which is not to be named" which they thought would destroy the realm. But it was not until 1533 that a statute was actually enacted against homosexuals. The Act (25 Henry 8, chapter 6) adjudges buggery a felony punishable by hanging until dead. The Buggery Act was piloted through Parliament by Thomas Cromwell in an effort to support Henry VIII's plan for reducing the jurisdiction of the ecclesiastical courts, as the first step towards depriving them of the right to try certain offences, which supported his policy of seizing Church property. Thus it was defined as a felony without benefit of clergy, which denied homosexuals in holy orders the right to be tried in the ecclesiastical courts, with the result that a conviction entailed loss of property to the Crown. The statute was re-enacted in 1536, 1539 and 1541 under Henry VIII; it was repealed in the first Parliament of Edward VI, along with all new felonies established by Henry VIII, but re-enacted in 1548 with amendments which no longer forfeited the felon's property to the Crown, and stipulations that indictments had to be framed within six months of the commission of the alleged act, and that no person who would benefit from the death of the accused could give evidence against him. With Mary's succession in 1553 it was repealed, along with many other statutes, thus giving jurisdiction back to the ecclesiastic courts. In 1563 it was revived by Queen Elizabeth I, in the harsh terms of the 1533 Act rather than with the amendments of 1548, because according to the Preamble, since the repeal of the Act in 1553 "divers ill disposed persons have been the more bold to commit the said most horrible and detestable Vice of Buggery aforesaid, to the high displeasure of Almighty God." Historical evidence fails to reveal any such excessive "boldness" for the years 1553 to 1563, and the only circumstance which prompted this severe reaction of Elizabeth's ministers was probably Elizabeth's desire to establish her claim to the throne as direct heir of Henry VIII: always politically astute, Elizabeth naturally re-enacted her father's laws rather than those of intermediate monarchs.




Gay men in England kill themselves after being arrested in 1707.
The immediate effect of the 1533 Act is unknown. It was on the books primarily as a symbolic token of the supremacy of the secular courts over the ecclesiastical courts. The prosecution of homosexuals was rare during the sixteenth and seventeenth centuries in England, and as far as one can discover, homosexual acts were not prosecuted with vigor until the second and third decades of the eighteenth century. The first recorded instance of any legal action was in 1541 (one of the years in which the Buggery Act was re-enacted), when Nicholas Udall, headmaster of Eton, was convicted of buggery; but strings were pulled in high places, and he was set free within a year. Homosexual prosecutions throughout the sixteenth century are sparse; in 1570 John Swan and John Lister, who were smiths and servants of the same master, with whom they lived, were charged with mutually consenting sodomy in Edinburgh, and in 1580 Matthew Heaton, a clergyman in East Grinstead, was prosecuted at the Sussex Assizes for a relationship with a boy in his parish. Fewer than a dozen prosecutions are recorded up through 1660, though this may reflect inadequate research into the subject, and a scarcity of extant legal records.

Convictions and punishments in other countries seem to have been more frequent and more severe. When William Lithgow visited Malta in 1616 he "saw a Spanish soldier and a Maltese boy burnt in ashes, for the public profession of sodomy," and by the end of the following day more than one hundred young men had fled to Sicily for fear of suffering a similar fate. In Geneva there were frequent prosecutions for sodomy from 1560 to 1610, linked to peaks of religious revival; a typical case was that of Pierre Canal, who in 1610 was tortured for high treason and murder, and before this inquisition was finished he had accused some 20 men of sodomy. Most of the sodomy charges throughout this period of Genevan history were levelled against French religious refugees. In Ireland, in 1640 John Atherton, Bishop of Waterford and Lismore, and his lover and tithe proctor John Child were convicted of buggery and hanged.

One of the tragedies of the New World is that it took over much of the legal system of the Old World. The Buggery Act of Henry VIII (as re-enacted by Elizabeth I in 1563) was adopted, often verbatim, by the original thirteen Colonies, and buggery was punished by death. The records of convictions are scarce, but they were not systematically recorded and are therefore difficult to discover. In 1624 Richard William Cornish, Master of the ship Ambrose, anchored in the James River, Virginia, was hanged for committing sodomy with the 29-year-old cabin boy William Couse. We know that sodomites were prosecuted in Plymouth Plantation in the 1640s. In 1646, in Massachusetts Bay Colony, William Plaine was executed for having committed sodomy with two persons in England before going over to the colonies; and in the same year, in Manhattan, New Netherland Colony, Jan Creoli, a negro, was sentenced to be choked to death and burned to ashes for a second offence of sodomy. In New Netherlands Colony there is a reference to attempted sodomy by N. G. Hillebrant or Hillebrantsen in 1658; and to alleged homosexual rape by J. Q. van der Linde (or Lijnden) in 1660 — he was tied in a sack and drowned in a river, while his partner was whipped and "sent to some other place." In 1674, in Massachusetts, a young man named Benjamin Goad was castrated for a crime which seems to have involved masturbating himself in front of, or with, other boys. Over the years, the death penalty was gradually replaced by whipping, imprisonment, castration, and forfeiture of all lands and goods, though in several states the death penalty was reintroduced.

Indeed the reform of antihomosexual laws has been exceedingly difficult despite the increasingly liberal attitudes of more recent times. The Judaeo-Christian abhorrence of homosexuality and the buggery laws are likely to be with us for a long time to come, exacerbated by the fear of AIDS. In March 1991 for example, during the debate in the parliament of the Isle of Man as to whether or not to decriminalize homosexual acts in accordance with the British Government and the European Convention on Human Rights, the majority of the Council of Ministers wished to retain their law against homosexuality. The argument of the select committee which rejected a proposal to bring their law into line with the rest of Western Europe pretends to be modern in its assertion that private homosexual activity should be banned in order to protect public health by preventing the spread of AIDS, but the vocabulary of prejudice has not changed over the centuries. It was summarized in the words of Mr Edgar Quine, opposed to reform of the Manx laws, who said "Dress it up as we will we are still talking about the unnatural offensive and abominable act of buggery."



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SOURCES: Derrick Sherwin Bailey, Homosexuality and the Western Christian Tradition (London and New York, 1955); Vern L. Bullough, "Heresy, Witchcraft, and Sexuality," Journal of Homosexuality, 1, 2 (1974), 183-201; Michael Goodich, "Sodomy in Ecclesiastical Law and Theory," Journal of Homosexuality, 1, 4 (1976), 427-34; Michael Goodish, "Sodomy in Medieval Secular Law," Journal of Homosexuality, 1, 3 (1976), 295-302; Montgomery H. Hyde, The Other Love (London: Heinemann, 1976); Jonathan Katz, Gay American History (New York: Thomas Y. Crowell, 1976); John J. McNeil SJ, The Church and the Homosexual (London: Darton, Longman & Todd, 1977); William E. Monter, "La sodomie à l'epoque moderne en Suisse romande," Annals: E. S. C., 29 (1974), 1023-33; Rictor Norton, "The Biblical Roots of Homophobia" and "A Rejoinder," in Towards a Theology of Gay Liberation, ed. Malcolm Macourt (London: SCM Press, 1977), pp. 39-46, 57-60.

Rictor Norton, A History of Homophobia, "The Medieval Basis of Modern Law" 15 April 2002 .
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