chapter  2
Law
Pages 39

If out of a thousand sodomites the authorities punish even one well, all of them experience fear. Although their crimes may not be completely prevented, they may in part be contained.

Most of the readings in this section deal with the legal conditions of homoeroticism in early modern England, and they are best understood comparatively, in their broader European and colonial contexts. That approach newly clarifies aspects of the English situation that have seemed perplexing, such as the surprisingly low incidence of prosecution there, and its significance for sexual history. Biblical and late-imperial Roman precedents underlie Renaissance criminalizations of same-sex sexual acts. Abominating any man who lies “with mankind as he lieth with a woman,” Leviticus 20:13 enjoins death; lacking any Levitical anathema of the feminine counterpart, persecutors of sapphism invoked St. Paul’s ambiguous censure of women who “change the natural use into that which is against nature” (Rom. 1:26). Although Renaissance legal authorities claimed that Roman legislation broadly criminalizing sex between males originated during the republic, the first Roman laws that did so were issued by Christian emperors in the late empire: Constantine’s sons Constantius and Constans in 342; Valentinian II, Theodosius, and Arcadius in 390, first to stipulate the penalty of burning; and Justinian in his code promulgated in 529 and revised in 533, reaffirming capital punishment, supplemented by novellae or edicts 77 and 141.2 The novellae provide the first legislative citations of the fate of Sodom to justify prohibition. If overlooked, Justinian claims, these alleged sins against nature likewise provoke God’s retribution against society as a whole, causing famines, earthquakes, and plagues.3