“SOFTNESS” IN A BORING FIELD, DENMARK 1744
The general Christian treatment of “sodomy”, however defined, as a capital crime was finally given statutory form in Denmark in 1683, but between then and 1820, there were only two prosecutions for it involving only humans. Unsurprisingly, in view of pederasty having been the predominant form of homosexuality in Europe until quite recently, both involved men with boys. Presented here is the story of much the better-documented of the two, involving a boy aged 8 to 18, as told by Wilhelm von Rosen in his article “Sodomy in Early Modern Denmark” in the Journal of Homosexuality XVI: 1-2 (1989), pp. 182-188. In view of its being so extremely unusual, it is of great importance in shedding light on early modern Danish attitudes.
From Sodomy in Early Modern Denmark
Shortly after sundown on Whit Monday 1744, eighteen-year-old Laurids Frandsen and seventy-two-year-old Rasmus Vaever“ were discovered in a field near the village Boring in Northern Jutland by Laurids’ father. They were lying on top of each other with their pants down. As later came to light, they had practiced interfemoral sex regularly for about ten years. The father complained to the local squire and accused Vaever of being a hermaphrodite. A semiofficial survey of Vaever’s sexual organs was conducted a few days later by four men from the village. It was established that Vaever was indeed a real man. Rumor of what had happened by then had run all over the parish, and soon thereafter the vicar made a visit to Frandsen’s family and eventually got a confession that was repeated, written down, and signed by two witnesses. The squire then summoned Frandsen and Vaever before the local court (herredsting) on the charge of having “sinned against nature.” The case was heard behind closed doors and lasted for four months. Both of the defendants were imprisoned during the trial. However, Frandsen seems to have been treated lightly because at one point Vaever complained that he (Vaever) was in chains day and night and had to watch Frandsen running around outside the prison, playing. Over the years of their relationship, Vaever had supplied Frandsen with gifts such as a pipe and tobacco, a knife, mittens, a scarf and a shirt, and on Whit Sunday the pair of blue gray stockings that he later wore in court. Rasmus had promised Laurids that he would inherit his money and had shown Laurids’ father a purse and told him that he would hide it in a secret place inside a chest that Laurids’ father should buy from his estate. In this way, Vaever’s wife would not get the money, which was enough to buy a couple of heifers for Laurids.
The focus of the interrogation of the defendants was their sexual practice. They denied having ever done anything but Rasmus placing his member between Laurids’ thighs from behind. Vaever claimed that he had been impotent for ten years, and Laurids declared that he did not know whether “anything wet” had ever come from it. They were examined by two physicians, who declared that it was not possible to determine whether a member had been used for illicit and unnatural purposes. Both defendants denied that Vaever had “placed his member in that place from where by nature uncleanliness is thrown out.” It took a number of court sessions and the persuasion of a severe prison stay before Vaever confessed. Both of the defendants claimed that they had not realized that what they had done was a sin and a crime.
So much for the facts, as they were established in court. A much tougher problem was the legal interpretation of those facts. Even the prosecutor and the judge were uncertain whether the acts were covered by the formula of the “Danske Lov,” art. 6-13-15: “Inter-course which is against nature shall be punished with death by burning.” In his written deposition, the prosecutor declared that “this sin” did not seem to be mentioned in the “Danske Lov,” except that it might be considered “intercourse against nature.” If so, it would have to be punished accordingly. He continued by citing Leviticus, “If a man also lie with mankind . . . they shall surely be put to death,” and concluded from a literal understanding of “lie” that because the king had not given a law covering this, “which is probably sodomy,” Vaever would have to be condemned to death according to the law of God.
Considering the fact that during the interrogation the prosecutor had been very keen to establish whether anal intercourse had occurred, he also must have realized that that was the decisive legal factor. But as anal intercourse had not occurred, he was reduced to trying to extend the areas of punishable acts to include what had happened according to the confessions. He did not, however, claim that sodomy had been attempted or intended, probably because attempt or intention did not enter the penal thinking of the “Danske Lov,” which was casuistic in its formulation of what constituted a crime.
Both of the counsels for the defense dismissed the idea that this was the case of sodomy or intercourse against nature. They maintained that it was necessary to distinguish between sodomy on the one hand, and “mollitia” on the other. (They both used a Danish term, literally “to be soft.”) The Counsel for Rasmus Vazver wrote in his deposition that he would be greatly to blame if he explained more accurately what was meant by sins against nature, but that it was necessary to do so. If this “gross sin” was what had supposedly occurred, it was absolutely necessary to establish “res in re,” that is, that the thing had been inside the thing. He continued with a probably realistic description of sexual behavior and its hypothetical legal consequences:
If the sinful intercourse of the defendants is considered sins against nature, what would then prevent considering sinning against nature, thousands of other people whose sinful and by Satan inspired imaginations and unchaste movements of hands and other limbs, like pagans in their sinful freedom, all serve the same purpose as these defendants, the throwing out of their semen?
If this became known, the Counsel argued, “one would have reason to fear that there would be too many executions by burning.”
The judge then took the unusual precaution of sending a copy of the minutes of the proceedings to the Royal Chancery in Copenhagen. There the case was handled by the Procurator General. The Procurator General responded to the judge by writing that, although instruction of judges was outside of his powers, he could not with a clear conscience omit to communicate his opinion and suggest a sentence due to the special circumstances of the case.”
The Procurator General agreed with the Counsels for the Defense on all the main points of the case. Nobody, he wrote, who had even the slightest knowledge of what was meant by the “Danske Lov,” art. 6-13-15, had ever claimed that intercourse against nature covered everything outside of natural and usual intercourse between married people. The “Danske Lov,” just like Leviticus, aimed solely at “coitus or intercourse . . . in the way a man lies with a woman.” This was to be distinguished from the “peccatum onaniticum” or the “sin of softness.” The onanistic sin he divided in three groups: (1) Masturbation with oneself or with some other male; (2) onanistic sins committed by married people; and (3) “if the member is inserted between thighs and the semen has been excited.” Those who committed these, and similar “delicta contra pudicitiam,” were what the Bible termed “malakoi” or “molles.” The Procurator General concluded:
If all those who through an incautious investigation, as in the present case, are found to have committed this last mentioned sin, should be sentenced by death by burning, a large part of humankind would have to be annihilated, something that no theologist or jurist has ever been ungodly enough to maintain.
Not only did the third group of the Procurator General’s definitions of the onanistic sins fit the actual case very neatly, he also accepted Rasmus Vaever’s claim of having been impotent for many years and declared this a mitigating circumstance when onanistic sins had to be punished; that is, when they caused public offense.
The heart of the matter, as seen from the central, judicial administration in Copenhagen, was the scandal and the offense to the public. And there was no doubt about who the real culprit was: the vicar. This theme had been touched upon by one of the Counsels of the Defense who said that the vicar had to carry the burden of the responsibility “for all the many souls who because of this case have found occasion to let themselves be thoroughly eaten by the leaven of evil.” The vicar and the squire should have known better than to initiate an investigation in the presence of witnesses and to bring such things to court. The vicar may have realized this because he never turned up in the court, despite being summoned as a witness several times.
The Procurator General began his instruction to the judge by deploring the blind and careless zeal that had made the matter known among the peasants - not to speak of having it investigated before a court “whereby more offence has been caused by these good men, especially the vicar, than any good that an investigation might bring, because the greatest offence in such cases, according to mine and the opinion of all upright people, is that it is made known.” This was what made it necessary to sentence. The Procurator General suggested that the judge sentence Rasmus Vaever to two years of prison, and that Laurids Frandsen be considered having “atoned” for his sins, by having endured arrest for five months. Laurids’ release was motivated by the fact of his youth, his lack of knowledge that he had committed a sin, and the hope that by that time he had become disgusted with his previous acts. After the termination of his term of prison, Rasmus Vaever was to be banished from the Province of Jutland. The judge pronounced this verdict immediately (23 October 1744).
According to the “Danske Lov,” any verdict by a local court could be appealed by the Provincial Court. The Procurator General, however, instructed the judge, immediately after pronouncing the verdict, to send it to the Royal Chancery in order to have the sentence confirmed by the king and thereby to prevent appeal. Legally this was possible because the king constitutionally was above the law. This very unusual procedure was accepted by the College of Chancery and by the Council of State,  and on 11 December 1744 the verdict was confirmed by King Christian VI. The motivating factor behind this rather drastic administrative measure was the Procurator’s wish to prevent gossip and public offense from arising due to the procedure at the Provincial Court.
The Procurator General, Jens Severin Wartberg, was a close friend of Ludvig Holberg and had a reputation for somewhat loose living. When he died in 1749, he not only left an exquisite library, but also (and more shocking in pietist Copenhagen) the largest and most elegant wardrobe ever seen. He was a co-manager of The Royal Theater, a keen party-goer, and a bachelor. His fear that “these things” were spread among the common people throws Holberg’s Epistle of 1748 on ancient Greek pederasty in relief. But although Holberg has sometimes been called “the Danish Voltaire,” his moralistic treatment is a far cry from Voltaire’s frivolous poem “L’Anti-Gone” (published 1720) or his tongue-in-cheek essay on the so-called Socratic Love, in Dictionnaire Philosophique. Even so, Holberg’s Epistle was probably slightly risque; there can hardly be any doubt that the authorities were scared that immoral conduct spread among the subjects.
The Procurator General was not a narrow-minded rural cleric, but a man of the world. His fear that this kind of knowledge would spread must be taken seriously and not considered just the banal fear of the ruling class that the governed would begin to behave uncontrollably. The fear of immorality, loose living, and unchastity can only have been a real fear, deeply felt by any Christian and loyal civil servant. Any sin, but especially the carnal sins, was a violation of God’s and Nature’s order (in this case a violation of marriage as an institution) and it was the duty of the state to prevent it from happening.
During the latter half of the eighteenth century, the idea of the social contract that the real and original source of political power lay with the people gained followers in high places and was, with all due circumspection and respect for the absolute monarch, included in works on the theory of government. For such early theorists of political science, to whom the idea of the sovereignty of the people was not a strange thought, it was, however, a matter of course that what in the end held society together and prevented its dissolution and corruption was religion. There was, at the same time, a veiled discussion, partly inspired by Montesquieu, of the pros and cons of absolute monarchy, but in the end it was agreed that a state consisted of people, and that whatever the type of government, the state would be as good or as bad as the sum of its individual parts. Laws and coercion, virtue and honor, tradition, education - none of these - sufficed. The real and final social bond was religion, “because we can have no more perfect rule than the command of the Highest Being who cannot will anything that is not in itself Good, and in accord with the Nature of Things.“
Prevention of and punishment for carnal vices between the sexes was a routine matter in the eighteenth century. There were rules and regulations to deal with that. Not so when it came to the “onanistic sins” that, as in the case from 1744, might develop uncontrollably. What was uncontrollable is not the fact of interest to us living in the twentieth century, but rather the fact that it involved two persons of the same sex. Yet the “homosexual” aspect of the case is really not mentioned in the records. The uncontrollable and feared factor in the case was the scandal, the offense to the public, the sinful thoughts, and the inspiration of a counter-religious nature that would follow from the publicity. The case developed the way it did not because two males were involved together in something of a carnal nature, but because some village residents believed that a hermaphrodite was in their midst. There was no law against that, but it was evidently a grave matter that the biological sex of a person was not certain.
There was no legal or administrative practice for the authorities to refer to when it became necessary to deal with “onanistic sins.” But the Procurator General did, in his instruction to the judge, describe how the sin mollitia should be silenced: All sensible and enlightened theologists were of the opinion that Christianity and wise politics (prudentia politica) demanded that, when a rumor of such things occurs, a priest never should let it be publicly investigated, and certainly never referred to the courts. Instead, with the greatest of caution he should trace the rumor to its origin, expostulate with, punish, teach, admonish to conversion, and give absolution, to the sinner, and then smother the rumor. In other words, sex between men that did not qualify as consummated sodomy was, by tacit understanding, referred to the discipline of the church. Here lies part of the explanation as to why no cases were brought to court in Denmark for attempted or intended sodomy between men until well into the nineteenth century. And this administrative practice probably also explains why no case of sodomy between men has been uncovered during the Early Modern period.
 There were very many more prosecutions (and executions) for bestiality, which was counted as a form of sodomy.
 The other involved a soldier and an apprentice in 1742 in the duchy of Schleswig, a Danish fiefdom, rather than Denmark proper.
 Vaever means weaver, which was probably his profession. [Author’s footnote]
 Danish: “Blødagtighed.” [Author’s footnote]
 The Procurator General was the judicial expert and adviser of the Royal Chancery (Danske Kancelli) which was the central administrative authority in judicial, ecclesiastical, educational and other matters of the interior. [Author’s footnote]
 Danske Kancelli, Records of the Procurator General, Erklaeringsbog 1744-48, National Archives, Copenhagen. [Author’s footnote]
 Danske Lov 1-6-9, cf. n. 1. [Author’s footnote]
 Danske Kancelli, Supplikprotokol 1744, 2.halvdel, nr.900; ibid., Kancelliprotokol 1744, fol. 415-16, National Archives, Copenhagen. [Author’s footnote]
 Danske Kancelli, Jyske Tegnelser 1744, fol. 324-25, nr. 104, National Archives, Copenhagen. [Author’s footnote]
 Holberg (1684-1754) was described by von Rosen earlier (p. 181) in the same essay as “the most prominent person of the Danish Age of Reason, […] a historian, man of letters, and writer of comedies whose work to this day is considered among the highlights of Danish literature.”
 Oeuvres completes de Voltaire 14, ed. Beuchot (Paris: 1833), 5-9. [Author’s footnote]
 Voltaire, Dictionnaire philosophique 1, ed. Julien Benda and Raymond Naves (Paris: 1937), 22. [Author’s footnote]
 Jens Schjelderup Sneedorff, Om den Borgerlige Regiering (Copenhagen, 1757), 105, cf. 120. Cf. Andreas Schytte, Staternes Iındvortes Regiering, Forste Deel (Copenhagen, 1773), 257sqv; Jens Arup Seip, Teorien om det opinion sstyrte enevelde, in (Norwegian) Historisk Tidsskrift 38 (1957-58): 410. [Author’s footnote]