Death penalty for Sodomy abolished in Scotland 1887
When was the death penalty for sodomy introduced?
We do not know when the death penalty for sodomy was introduced. We do know the first recorded prosecution for sodomy leading to execution was in 1570. John Litster and John Swan were strangled and burnt at the stake.
Sodomy was an offence under Common-law. Along with murder and other serious crimes, sodomy was not written in government acts or codes or regulations. So we cannot easily look back and check when it was introduced. In Common-law the judgements of previous cases are looked at. This is called ‘legal precedent’. Principles gathered from earlier cases are used to judge crimes and give sentences in new cases.
How was sodomy defined?
People writing about the law gave us definitions of what courts called ‘unnatural acts’. They say the acts could include men, women and beasts. In 1832 Sir Archibald Allison defined it as unnatural relations between two men during which penetration occurs. He also says that emission of seed is not necessary for conviction. This was similar to a recent change in English law.
Why did sodomy have the death penalty?
We do not know much about popular attitudes to same sex desire in the past. We do know opinions of some of the lawyers who defined sodomy. Some could barely conceal their personal revulsion. Baron David Hume describes the sin of Litster and Swan as the ‘wild, filthie, execrabill, detestable and unnatural sin of sodomy’. John Millar at the University of Glasgow lectured on crime. He said sodomy was mostly a crime against religion. He linked it with other serious crimes such as usury, bigamy adultery and incest. Sodomy was also associated by others with heresy and witchcraft.
Were there many capital crimes?
There were far fewer than in England. In the early nineteenth century England had over 200. Scotland had less than 50. There was some awareness, and even pride in, Scotland’s lesser use of hanging than their southern neighbours.
How many men were executed for sodomy?
There seem to have been very few executions, though there is little surviving evidence. If found guilty most men were transported or imprisoned. From 1800 there were no executions for sodomy. Yet for other capital crimes there was a large increase in executions between 1780 and 1820.
In the first half of the nineteenth century there were, on average, six sodomy trials a year in the High Court. As Scotland’s population grew the trials increased to about twelve a year after the 1860s. In 1872 there were twenty two High Court prosecutions. The sentences given were between one and fifteen years imprisonment. These numbers are quite small compared to other capital crime statistics. This is because the majority of cases of sexual activity between men were tried in the lower Sheriff courts.
Why were so few death sentences carried out?
In the Scottish legal system the process gave the defendant a better chance of the case being heard in a lower court or a reduction of the charge before the trial started. This was usually on the condition that the accused be either banished from Scotland or transported, thus evading the death penalty. Transportation to Australia stopped in 1868.
Judges could exercise discretion in sentencing. Common-law allowed consideration of factors such as age, gender, character and nature of crime as well as place and time. Laws made by Acts of Parliament rarely offered this flexibility. If the accused was given a death sentence they had to petition the Home Office in London for a reduction of their sentence. But even here the Scottish judges’ opinions were often crucial in deciding who would be pardoned.
In England many prosecutions were for private acts of sodomy. This was very rare in Scottish law because of the need to provide two forms of evidence. Most prosecutions were for public acts.
Was sodomy the only ‘unnatural offence’ punished?.
By the 1800s there were many prosecutions in the Sheriff courts for all sorts of behaviour, not just sodomy. The number of cases was growing. The common law offence of ‘shameless indecency’ was increasingly used. Scottish Burghs introduced local bye-laws. These prosecuted a wide range of sexual activities, mainly those in public spaces. Edinburgh introduced a bye-law to prevent loitering in a public convenience.
Why was the death penalty abolished?
The population increased and crowded into the growing industrial towns and cities. As a result the number of executions greatly increased for many crimes. This led to a public debate about the death penalty and public punishment. From the 1830s the number of executions decreased.The death sentence was then rarely used for anything other than murder. Transportation or imprisonment were used for other crimes.
What changed in 1887?
The Criminal Procedure (Scotland) Act 1887 combined many Acts to make the law more simple and straightforward. Section 56 reduced the number of capital crimes. It limited capital punishment to murder, treason and rebellion against the sovereign.
As with many Parliamentary Acts it was catching up with what was already happening in the courts. The Act was not part of any programme of government reform. It was the brainchild of J.H.A. Macdonald who was Lord Advocate and an MP. He brought forward the bill in Westminster and by chance it was passed quickly with little review.
Although there had been no executions for sodomy since the beginning of the century, now any threat was removed. Imprisonment continued to be the punishment.
Voices and Visibility 2019