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Pennsylvania
Drops Death Penalty
Pennsylvania, 1786. In a
sweeping liberalization of the legal system, the state of Pennsylvania removed capital
punishment for many crimes including burglary, robbery, sodomy, and
buggery
(in Pennsylvania at the time, "buggery" referred to sex with animals). These
formerly capital crimes had their sentences reduced to the forfeiture of all property and
a period of servitude not to exceed 10 years.
Pennsylvania's enthusiasm for legal reform came
from an abhorrence of the English legal code which legislators felt was forced on the
colonies before the American Revolution of 1776. In an effort to cast off the legal
vestiges of British rule, they began a movement toward legal reform that led to the
elimination of capital sentences for most crimes.
Similar legal changes followed in other states,
though not quickly. New Jersey was the next to remove the death penalty 10 years later, in
1796, followed by New York in the same year. The last of the original states to remove
capital punishment for sodomy was South Carolina, in 1873. In some of the states, notably
Virginia in 1800, the capital penalties were retained for slaves, but not white people. In
a peculiar twist, Thomas Jefferson, a man who is usually noted as a enlightened voice in
American history, drafted a proposed revision of Virginia's laws. In it, he specified that
the penalty for sodomy among men should be castration, and for women, a hole should be cut
in the nasal cartilage of at least one half inch in diameter apparently in the belief that
torture was preferable to the death penalty. Jefferson's proposal was unique not only
because it specified mutilation as a punishment, but because he broke with the English
tradition and included women in his definition of sodomy. Fortunately, Jefferson's
"liberal" approach was never made law.
Law reform did not reflect a new positive feeling
about sodomites. Rather, it was seen as an escape from the possibility of tyranny.
Montesquieu (1689-1755), the French philosopher, had deeply influenced the writers of the
American Constitution in his book The Spirit of Laws (1748). In that book, he
warned that charges of sodomy could easily be used for political ends, like charges of
heresy or witchcraft, and his work probably influenced the early states toward the removal
of the death penalty.
Sodomy Laws before the Revolution
At the time of the American Revolution, all 13
states had laws that specified the death penalty for sodomy, but for different reasons. In
New England, a strong Puritan influence dominated the formation of laws, and sodomy was
condemned for Biblical reasons. The Puritans wanted New England to be like John Calvin's
Geneva, a theocracy guided by God's laws. The place where they found God's laws was in the
Old Testament book, Leviticus, which had been a rule book for holy living of the
ancient Hebrews. Many of the laws drafted by the Puritans in the 1600s were framed around
the idea of a "levitical" lifestyle. Leviticus was very clear in its treatment
of sexual behavior and was quoted in this law from the New Haven Colony in 1655:
If any man layeth with mankinde, as a man lyeth
with a woman, both of them have committed abomination, they both shall surely be put to
death. Levit. 20.13. And if any woman change the naturall use into that which is against
nature, as Rom. I.26 she shall be liable to the same sentence, and punishment ...
The Puritan approach differed from the English
legal tradition because it explicitly cited the Bible as the basis of its laws and because
it included women in its statutes against sodomy. When Henry VIII created the law against
buggery in England, it was defined as the secular crime of anal intercourse between males.
To the Puritans, it was any sexual act between two members of the same sex.
In Pennsylvania, a Quaker influence moderated the
laws from 1676 until 1718. In an effort to reduce bloodshed which Quakers abhorred, the
legal code was changed so that murder was the only capital crime, and a sodomy conviction
resulted in only 6 months imprisonment, whipping, and the forfeiture of one third of the
convict's assets. In 1700, the law was revised in two ways: the penalty for sodomy for
whites was changed to include castration for married men, and "negroes", whether
slaves or free men were to suffer death. In 1718, the British forced Pennsylvania to bring
its laws into compliance with British legal tradition, and a brief period of relative
liberalism ended.
The southern colonies never participated in New
England's Puritan tradition, though the penalty for sodomy was the same. Instead, they
inherited the secular British legal code which limited prosecution to anal sex between men
and did not mention women.
In spite of universal laws against sodomy in the
colonial and early post-revolutionary periods, sodomy prosecutions were rare, perhaps
because no sodomitical subcultures appear to have emerged. Holland, France, and England saw the development of subcultures of sodomites in the
1700s, but no evidence suggests that such subcultures existed in the young United States.
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| Notes and References |
Crompton, 1976, tells the history of colonial sodomy laws and documents the influence
of Montesquieu on colonial laws. The New Haven sodomy law is reprinted in full in
Katz, 1976, p. 23. Katz, 1976, also reported on Jefferson's legal theories.
The significance of English legal tradition is discussed in Oaks, 1979 and in
Talley, 1976.
Crompton, Louis, 1976. "Homosexuality and
the Death Penalty in Colonial America". Journal of Homosexuality, Vol. 1 No.
3.
Katz, Jonathan Ned, 1976, reprinted 1992. Gay
American History. New York: Meridian.
_______, 1983. Gay/Lesbian Almanac. New
York: Harper and Row.
Oaks, Robert, 1979. "Perceptions of Sodomy
by Justices of the Peace in Colonial Virginia." Journal of Homosexuality, Vol
5 Nos. 1 & 2.
Talley, Colin L., 1996. "Gender and Male
Same-Sex Erotic Behavior in British North America in the Seventeenth Century". Journal
of the History of Sexuality, Vol. 6 No. 3.
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© 1998
Andrew Wikholm
All Rights Reserved |
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