Sodomy and Criminal Justice in the Parlement of Paris, ca. 1540–ca. 1700

During a series of interrogations in late 1588, the magistrates of the criminal chamber of the Parlement of Paris tried Alexandre Jouan on appeal from the subordinate court of the Châtelet in Paris for the "extraordinary crime" and the "sin" of "sodomy." Noël Biresse, who had been driving his cart outside Paris by the gate of Saint-Antoine, testified that he saw Jouan, a merchant who sold ashes, "lying with a baker in the ditch, on top of the man, with his shirt pulled off." At first Biresse "thought Jouan was with a wench, and he wanted to see what they were doing, but when they stood up he realized that it was a man who took a handful of grass to wipe himself down after he had been underneath this man [Jouan]." Under torture on the rack Jouan cried out, "Jesus, Mary, Saint Nicolas, my God, misericord!" and "I'm breaking, kill me!," but he continued to deny the charge of sodomy. Finally, the Parlement sent Jouan back to the Châtelet, from which he was to be released unless more information came to light that proved his guilt.¹

Jouan's case demonstrates some of the intractable difficulties involved in prosecuting sodomy through the inquisitorial procedures of criminal justice in sixteenth- and seventeenth-century France. In Jouan's case, the

Figure 1.

This image shows Alexandre Jouan's interrogation and confrontation with Noël Biresse in the criminal chamber of the Parlement. AN X2A 956, 1588-10-19.

witnesses had a poor view of the events they described and gave contradictory evidence to the court. Biresse saw Jouan and the baker "rolling around in the grass," with Jouan "on top of the man," but he admitted that he could not be certain from a distance. Instead, Jouan protested that "the two witnesses who testified saw them playing cards and dice" and that the baker was "a respectable man." Jouan also claimed that "his brother-in-law incited two carters to spy on him," which suggests that family enmity might have motivated the accusation. Another witness, Guillaume Le Juste, who used to lodge with the master baker Jean Baudet, could not be found. The case proved inconclusive, and the Parlement therefore declined to condemn Jouan to any further punishment beyond what he had already endured in jail. For both Parisian courts the evidence did not add up. On the rare occasions in sixteenth- and seventeenth-century France when criminal courts tried sodomy cases such as this, the crime proved almost prohibitively difficult to prosecute.

Historians who have written about the sexual acts labeled as sodomy in the criminal courts of sixteenth- and seventeenth-century France—most often sex acts between males or bestiality, but also the anal rape of women and public masturbation—have focused on the courts' official rhetoric and not on their judicial practice.² As a consequence, these historians have often seen the sixteenth and seventeenth centuries as a time when criminal courts continued the precedent set by the late medieval inquisition in punishing those convicted of sodomy by burning them alive.³ No royal edict or ordinance issued in early modern France structured the prosecution of sodomy, and so jurists relied instead on a combination of case precedent and established principles of Roman and natural law.⁴ The Emperor Justinian's Institutes (4.18.4) stated that "the Lex Julia on adultery punishes with death … those who indulge in unspeakable lust with males," while the Old Testament (Leviticus 20:13) declared that "if a man also 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 be upon them."⁵ Preachers and theologians, magistrates and jurists all developed these terms as they continued the late medieval denunciation of sodomy as an "unmentionable sin," one that "polluted" the body by giving way to "sexual indulgence" and that deserved exemplary punishment, just as God had burned...