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“Do not rape and pillage without command”: sex offences and early modern European armies

“Ni pillage ni viol sans ordre préalable”. Codifier la guerre dans l’Europe moderne
Marianna Muravyeva

Abstracts

The emergence of the nation state in early modern Europe was associated with firm policing of sexual behaviour and the creation of a close interdependence between permitted sexuality, procreation, and heterosexual marital union. European armies became experimental fields for the creation of model men and citizens; their sexuality was tightly controlled, and any deviation from the norm harshly punished. Military law, based on the school of natural law and the concept of a just war and military discipline, was the first to develop a systematic approach to sex offences, their hierarchies, and forms of punishment. As a result, European military codes and military courts prosecuted any sexual practices which deviated from the norm (interpreted as procreative marital heterosexual relations). This was one of the most important aspects of early modern development and the emergence of the nation state.

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  • 1 On the military revolution, see Ayton & Price 1998; Black 1991; Childs 2001; Downing 1992; Stradlin (...)

1War was an inherent part of European everyday life in early modern times, and in some countries probably constituted a normal way of life for the local population. The seventeenth century had only seven peaceful years without war. The great European powers were constantly involved in various religious, dynastic, colonial, economic and personal conflicts and wars. With war becoming a major method of conflict resolution, European governments started to devote more attention to all aspects of the military, introducing various regulations and rules of conduct. Scholars call this process “the military revolution” to underline the profound changes that took place in both the warfare and legal practices of early modern Europe.1

  • 2 The codification of military law, that is, the collection and systematic arrangement, usually by su (...)

2The leading jurists of the time, Hugo Grotius, Samuel von Pufendorf, Christian Thomasius, Emmerich de Vattel, Charles-Louis de Montesquieu and many others, made room for military law within ius naturale and ius gentium. The codification of military law, which preceded the codification of civil law,2 became an urgent and important task, in order to provide detailed legal foundations for an army’s functioning, and to turn armies into more easily-controlled mechanisms ready to fight in the state’s interest. These newly developed military codes and regulations concentrated on warfare and discipline, offering tools and methods to maintain “order” among officers and soldiers. These disciplinary methods penetrated every single aspect of military life, including the private sphere of an individual, thus depriving him of any privacy. Armies developed their own jurisdiction and court systems so that by the beginning of the eighteenth century in the majority of European countries, the military possessed its own administrative bodies and judicial systems, regulated by special military codes. This special jurisdiction covered the military not only during wartime but also during times of peace, when armies were confined to their garrisons and headquarters, that is, during the active service of officers and soldiers.

3Creating a model army and a model man and citizen involved the scrupulous regulation of male sexuality, something which becomes especially visible in the military codes of the seventeenth and eighteenth centuries. The codes targeted two main spheres of male sexual behaviour, that is, relationships within the military as a closed group and military conduct towards the civilian population, including their fellow countrymen and women and the population of the enemy’s territory. This development was closely connected to new attitudes towards warfare and the civilian population in general, visible in numerous pacts, agreements and concords of the time. The military codes strictly prohibited (on pain of death) pillaging, looting and other “mischiefs” that might be perpetrated on the civilians of conquered territories. Sexual violence, especially towards pregnant women and women with small children, was also to be prohibited by these codes, as we will see below. Although looting, pillaging and rape remained common practice for armies in the seventeenth and eighteenth centuries, legal pressure and prosecution for outlawed forms of sexual behaviour on the one hand, and detailed regulations concerning discipline on the other hand, slowly transformed warfare and armies’ behaviour into more or less “regular military conduct”.

  • 3 On the concept of citizenship in early modern Europe, see Wells 1995; Linklater 1996.
  • 4 On Russian military law, see Keep 1985; Stevens 1995; Paul 2004.
  • 5 On the natural law school and sexuality in Europe, see Muravyeva 2013.

4In this article I will focus on the military legal regulations developed during the seventeenth and eighteenth centuries, to highlight changes in armies’ sexual conduct which became the basis for a new model man and citizen of a nascent nation-state.3 I will give a chronological account of the principal changes in international law and military regulations, as well as contemporary attitudes to male sexuality in the seventeenth and eighteenth centuries, and show how these laws and norms were applied in practice, drawing on cases from European military courts. I will focus specifically on Russia as the principal case study, to underline the expansion of the military revolution and highlight the consistency of changes in attitudes to male sexuality. The Russian case is exemplary for several reasons. Russian military courts were the main and often only functional courts in the country, with military law becoming the framework for the codification of state law and legal reforms in the seventeenth and eighteenth centuries. It was military law which legislators tended to use as a test case for new state laws. However, scholars have not paid much attention to court practice, which makes the Russian example interesting and novel, compared to other European cases such England, France, Sweden or Germany.4 I argue in this article that it was military law, with its focus on regularity, discipline and order, which secured the model of procreative marital sexuality developed by European proponents of natural law, and that an army provided an example of proper sexual behaviour according to both natural law and the law of God.5

The “military revolution” in European law: to live according to the regulations

  • 6 Roberts 1956; Parker 1976; Parker 1988; Black 1998.
  • 7 Black 1991; Black 2008. On the discussion, see Rogers 1995; De Moor 1997.

5The notion of a “military revolution” suggests that Europe underwent profound changes in attitudes to warfare, including changes in legal provisions and international law. However, the debate on how profound these changes were has continued ever since the 1950s, when Michael Roberts, in his inaugural lecture at Queen’s University, Belfast (1956), linked military technology with larger historical consequences. In his opinion (later developed by other scholars, in the first place by Geoffrey Parker) changes in the technologies, tactics and doctrine of warfare, maximizing the use of firearms and other modern weapons, led to the State paying more attention to the army and its needs, and to the creation of new institutions and new financial instruments to fund wars and warfare. One of the outcomes of this process, Roberts pointed out, using the example of the Swedish and Dutch armies, was the creation of greater numbers of regular troops.6 Following his ideas, the discussion mostly concentrated on the technical and technological aspects of these changes, such as developments in arms, siege tactics, artillery, infantry manoeuvres, and so on. Some scholars, like Jeremy Black, have argued that the influence of these changes has been exaggerated and that the concept of a military “revolution” was too simplistic to explain the emergence of the modern state and modern warfare.7 Military historians, meanwhile, were busy discussing arms and uniforms, hardly touching upon the problems of an army’s discipline and organization, issues which should have been crucial for such a debate at that time.

6The most visible changes in early modern Europe occurred in the legal provisions for military organization, which included a new system of discipline closely related to the concept of a “just war”. The attitude to civilians, especially to women and children, became a fundamental element of this concept. One commonplace for theorists of the just war was the condemnation of sexual violence. Alberico Gentili (1552-1608) formulated the general attitude, shared by his contemporaries and other lawyers of the natural law school:

  • 8 Gentilis 1877: 241. On rape in the sixteenth and seventeenth century, according to the school of na (...)

It is not lawful to do this wrong [rape] even if it is sometimes lawful to kill women … If a woman fights, why should she not allow war to be made upon her? … But there is no reason why she should suffer so signal an insult.8

  • 9 Russell 1977: 127-212.

7The concept of a just war was not new in the sixteenth century. Its foundations could be traced back to Roman philosophers, to St Augustine, to medieval canonists (canon lawyers) and, particularly, to the decretalists. The decretalists, using the example of the kings in the Bible who waged “just wars” against unbelievers, developed a coherent concept of a just war, which contained five essential elements: persona, res, causa, animus, and auctoritas, which, in turn, formed five criteria to define the justness of a war: the person who declares war must be a layman; the cause of the war should be either the protection of the patria or the return of stolen goods; a just war had to be based solely on necessity; the wish to punish enemies in itself cannot be a just reason for a war; and a war could only be started with the sanction of a legitimate ruler. St Raymond of Peñafort (c.1175-1275) added that if anybody during a war misused violence, that is, engaged in pillaging, looting and unnecessary killing, they should be excommunicated immediately.9

  • 10 Urs Graf (1485-1529) was also a mercenary soldier. He depicted mercenaries in his paintings such as (...)
  • 11 See, for example, Hale 1983; Baron 1966: 430-440; Moxey 2004: 67-100; Mosse 1998: 2-34.

8Sixteenth-century authors developed the legal aspects of this doctrine, that is, they elaborated on the legal provisions concerning the outbreak of war and the conduct of warfare. Their main thesis included the idea that war was a battle between two armies, which gave immunity to the civilian population, especially to those categories thought to be helpless, namely, women, children and old people, and those which were thought to be essential for peace, namely the clergy, merchants and ambassadors. All of these authors generally condemned looting, the excessive use of violence and atrocities on civilians, especially on fellow Christians. Pierino Belli (1502-1575), Balthasar de Ayala (1548-1584), Alberico Gentili, and Hugo Grotius (1584-1645) called for “Christian” conduct on the part of officers and soldiers and for harsh punishments for breaking Christian norms of morality. They contributed to the creation of the image of a “Christian warrior”, whose conduct was guided by Christian rules. At the same time, they joined humanists in their examination of various forms of human behaviour, including the analysis of the incentives to commit a crime and acts of violence. The contrasting image to that of a Christian warrior was a merciless mercenary, immune to justice and morality. Many of them treat war as a fundamental factor in the spread of violence and aggression. Visual images of war and despair (such as paintings by Urs Graf)10 complement the picture of the Renaissance attitude to warfare.11

9Both clerical and secular authors of the sixteenth and seventeenth centuries insisted on underlining the moral dangers for those men who decided to join the army: they were going to be tempted by drinking, gambling, whoring, and would be absolutely oblivious of God. The chief danger was that soldiers would have learnt in the army to use violence in everyday life. Erasmus for example wrote as follows:

  • 12 Erasmus 1813: 67. For Erasmus’s views on the just war, see Fernandez 1973.

Do you shudder at the idea of murder? You cannot require to be told that, to commit it with despatch and by wholesale, constitutes the celebrated art of war. If murder were not learned by this art, how could a man who would shudder to kill one individual even when provoked, go, in cold blood and cut the throats of many for a little paltry pay, and under no better authority than a commission from a mortal as weak wicked and wretched, as himself, who does not, perhaps, know even his person, and would not care if both his body and soul were annihilated?12

10A hundred years later, a Muscovite author in his foreword to a set of military regulations “The Discipline and Skills of Military Men” (Uchenie i khitrost’ ratnogo stroeniia liudei) lamented:

  • 13 Uchenie i khitrost’ ratnogo stroeniia liudei 1647: f. 15rev-16. See also: Hale 1971.

And now contrary to it [the purity and piety of old warriors] there is blasphemy, there are insults against God, drunkenness, swearing, lechery […] and they dishonour women and behave unjustly. And you hear how they dare say that these actions are common military habits and permitted for military men because they are not monks in a monastery.13

  • 14 Belli 1936: II, 61-62.
  • 15 Ibid.: II, 177-178.
  • 16 Ibid.: II, 80-81.

11Sixteenth- and seventeenth-century lawyers also concentrated on the pragmatic issue of “good” versus “evil” and on the necessity therefore of observing military discipline. Pierino Belli in his treatise On Military Matters and Warfare (1563) stresses the importance of discipline to Christian soldiers. In his opinion, soldiers should follow the rules of Christian conduct formulated by St. Luke, that is, “Do violence to no man, neither accuse any falsely; and be content with your wages” (Luke 3:14). However, Belli bitterly notes that these rules are very hard to put into practice and that soldiers do not observe them, “For the soldiers of our day, careless of salvation (being persons who either do not believe in God or do not fear Him), make a business of plundering and all sorts of outrage.”14 Such things happen, Belli remarks, because of the impunity of the military and the privileges it enjoys, something which can be justified only if it is a reward for virtue. One of those privileges is ignorance of the law, which is often pleaded, since soldiers are deemed to know about nothing except fighting. The military uses this excuse to commit crimes, but that is unacceptable. Belli uses the example of rape to demonstrate that one cannot excuse an illegal act on the grounds that one is ignorant of the law. Clodius Albinus (c. 150-197) and Totila (d. 552), although very different writers, both expressed horror at the idea of rape and punished rapists very severely. Albinus would order two trees to be felled and then had the rapist’s feet attached to them to be pulled apart.15 Women however were not as a sex exempted from the “rigours of war”. Belli does not say which rigours he means, but claims to be inspired by the Digest of Justinian and other ancient laws, when he refers to captivity or ransoming. On the other hand, the religious were to be spared: soldiers were not to do violence to men attached to the service of God.16

  • 17 Ayala 1912: II, 127.
  • 18 Ayala 1912: II, 174.
  • 19 Ayala 1912: II, 174-175.
  • 20 On Grotius’s attitude to rape and sex crimes, see Muravyeva 2013: 76-79.

12Balthasar de Ayala, a Spanish jurist and military judge, insisted that kindness and gentility in the treatment of a conquered civilian population helped to pacify it and submit it to a new ruler, while cruelty and violence provoked discontent and rebellion.17 The best examples were those of Scipio and Hannibal. Ayala discusses military discipline at length in book three of his famous treatise On the Law of War and on the Duties Connected with War and on Military Discipline (1582). The efficacy of the army, he argues, is totally dependent on discipline and virtue, which makes such an army efficient and victorious. Women represent the main danger to discipline and, therefore, to military efficiency, “women camp followers [are] a great disgrace and matter of severest reproach,” he notes.18 Referring to the Roman experience, he insists that soldiers and officers should be prohibited from bringing their wives to military camps as well as from marrying while on march or in camp. Women also tend to invoke luxury and push soldiers to sell their corn or exchange booty in the form of cattle for wine, and to engage in other undesirable habits that prevent an army from being mobile and victorious.19 Hugo Grotius concluded the discussion on a just war, arguing for the illegality of any abuses of the civilian population. Rape, looting, pillaging, and murder are crimes and should be punished and prosecuted even if they have occurred during the war.20

  • 21 All these regulations are published in Lünig 1723, and further analysis and references are given ac (...)

13This attention of lawyers to the rules of war was fully reflected in the development of military law. Approximately five hundred different military codes and regulations emerged in the sixteenth and seventeenth centuries. This codification developed along with the nascent nation state.21 An army becomes an important tool, a part of the state machinery; it represents its sovereign, but not a ruler personally, rather a nation in general. The ideology of loyalty, obedience and discipline guides the process of creating efficient and victorious armies ready to serve. Emmerich de Vattel (1714-1767) put it this way:

Good order and subordination, so useful in all places, are nowhere so necessary as in the army. The sovereign should exactly specify the functions, duties and rights of military men – of soldiers, officers, commanders of corps and generals. He should regulate and fix the authority of commanders in all the gradations of rank, the punishments to be inflicted on offenders, the form of trials & c. The laws and ordinances relative to these several particulars form the military code.
[…] Those regulations whose particular tendency is to maintain order among the troops, and to enable them to perform their military service with advantage to the state constitute what is called military discipline. This is of the highest importance.

  • 22 Vattel 1797: 299.

14Vattel summarized the main ideas about a just war and military discipline as follows: the army should be in good order, well-run and regulated, soldiers should be accountable for their actions, and all these could be achieved by observing discipline and proper subordination.22 Military law provided formal tools to reinforce these ideas.

Policing sexual behaviour: European codes and regulations

  • 23 “Kaysers Friderici III. und des H. Röm. Reichs Heers = Ordnung wieder die Türcken, bey geneiner Rei (...)
  • 24 Lünig 1723: 4.
  • 25 Lünig 1723: 58-76; 277-280.

15Early modern European military law included two parts: the rules of warfare covering not only the rules of combat and the general etiquette of military conduct in battle, and military law per se, which regulated the state’s military policies. In 1486, Emperor Frederick III (the Peaceful) issued the first modern regulations to strengthen discipline amongst his troops during the Austrian-Hungarian war (1477-1488).23 This ordinance provided the basis for his son Maximilian I (1459-1519) to compose the first military code or “Articles” in 1508. The code contained 23 articles, with the first five prescribing absolute obedience to the emperor. Article 7 regulated the rules of conduct in camp; article 13 protected churches from billeting and article 14 prohibited any violence against the local civilian population: “You shall swear that you will not harm any pregnant women, widows and orphans, priests, honest maidens and mothers, under the fear of punishment for perjury and death”.24 Taking this article as a basis, the Emperor Charles V (1500-1558) issued a number of ordinances prohibiting any usage of violence towards civilians, and Maximilian II (1527-1576) composed his own “articles”, which were recognized as a universal military code for the Holy Roman Empire till 1642.25

16The model military code was that of Gustav II Adolf of Sweden (1594-1632), who issued his “articles” in 1621. This code contained one hundred sixty-seven articles. The main feature of the code is the extreme severity of its punishments: the death penalty is the main punishment in at least 41 articles for such offences as desertion, mutiny, disobedience, disrespect to officers, falling asleep on watch, looting and rape. This code became a model for Leslie’s Scottish army in 1644, for Cromwell’s new model army and for the Imperial military code of 1642.

17The second wave of codification came in the 1670s and 1680s. Sweden and Denmark produced new modified articles in 1683; William of Orange issued his code in 1674; Louis XIV had his code published in 1679. These laws differed from the previous regulations, first of all, because they in fact resembled codes of law, that is, they consisted of thematic chapters which covered all aspects of military life. During this period the first naval codes appear as well.

18The third wave of codification comes in the 1710s and 1720s. The Russian (1716) and Prussian (1717) military codes became the most important events in this codification. The codes were becoming longer and more complicated. Thus, Maurice of Nassau, Prince of Orange (1567-1625) had included only six articles in his regulations issued in response to a mutiny among Dutch officers. At the beginning of the eighteenth century, however, Dutch, German and Austrian commanders issued disciplinary regulations every year to supplement existing military codes. In addition, earlier codes had summed up all sexual offences in one article under one punishment (the death penalty). By the end of the seventeenth century, they received their own chapter, which included between seven and ten articles covering all possible sex offences and misconduct, with various punishments (see, for example, chapter 16 of the Swedish Military Code or chapter 20 of the Russian Military Code of 1716).

19The contents and structure of these codes were very similar as commanders usually borrowed from each other. A separate chapter regulated discipline, including disciplinary offences and crimes. The death penalty was imposed for grievous crimes from the military point of view, which included unlicensed plundering and the rape of civilians. Death was usually by hanging for the rank-and-file, and shooting or beheading for officers. Some codes had particularly vicious punishments for certain offences; for example, the Swedish code of 1683 punished soldiers who were looting instead of pursuing the enemy army, by clubbing them to death. Collective offences (such as mass rape) could be punished by decimation (singling out a few individuals for exemplary punishment and pardoning or giving lesser sentences to the remainder). Corporal punishment was reserved for lesser crimes (gambling, excessive drinking, failure to observe sanitary regulations, and so on). All the codes covered the fundamental military duties of obeying orders, not breaking ranks, following and guarding the colours and other actions. They all concentrated on the preservation of order in camp and on the march, by regulating the activities of camp-followers, by restraining drinking and gambling, and by prescribing basic sanitary rules in order to avoid epidemics. They all included moral guidance for the behaviour of the soldiers.

  • 26 Tallett 1997: 122-128.

20To make the codes available and known to their armies, commanders often ordered that they be printed and circulated among officers and that articles be read out loud to the rank-and-file when they mustered (in Sweden and Russia this happened once a month) or when new recruits swore an oath of obedience (as in the imperial or English armies). By so doing, commanders made sure that the basic military legal rules were known to their soldiers and officers, and that they would observe them on pain of harsh punishment and death. Finally, military codes made their way into a state’s legislation, being part of the social policy of a new nation state: the military became a separate social group having its own jurisdiction.26

“Do not plunder, billet the churches, or ravish women without command”: creating (hetero)sexual normativity

  • 27 On this trial see Brauer-Gramm 2001; Kemper 2004, ch. I.

21The first trial concerning the transgression of the rules of war and of human and divine law was that of the knight Peter von Hagenbach (c. 1420-1474) who carried out various atrocities in the town of Breisach without war having been declared. His soldiers stormed the town, sacked it, raped women, robbed merchants etc. An ad hoc tribunal was appointed by the Archduke of Austria, and von Hagenbach was formally accused of having “trampled underfoot the law of God and man”. He was charged with murder, rape, perjury and other crimes, including that of having ordered his mercenaries to kill the men resident in houses where they were billetted, so that the women and children would be completely at their mercy. Von Hagenbach appealed to his suzerain, the duke of Burgundy, on whose orders he claimed to have acted. The tribunal nevertheless declared him guilty and sentenced him to be beheaded.27 This trial became a precedent for cases where the rules of war had been broken, and set a certain threshold beyond which it was forbidden to go regarding the civilian population.

  • 28 Kohler and Scheel 1900: art. cxv-cxxii.
  • 29 Bambergische Peinliche Halsgerichtsordnung 1507: 39b (art. cxlii).

22Early modern military codes sought to observe a Christian attitude towards the local civilian population, and sex offences were thus a particular concern. Every code included regulations on the sexual behaviour of the military during wars, on the march, and during peacetime in camps and quarters. The majority of military codes used the Constitutio Criminalis Carolina (CCC, the criminal code of Charles v) of 1532,28 which defines several crimina carnis [sins of the flesh]. Article 115 punished “immoral sexual relations against the order of nature”, which included sexual relations with animals or same-sex relations between men or women, and imposed death by burning at the stake. Article 116 prohibited incest, that is, sexual relations between close relatives, including a step-daughter, daughter-in-law or step-mother; however, it did not provide any specific form of punishment, but referred to the laws of “our predecessors” and imperial ordinances, supplemented with the opinion of learned lawyers. The article reproduced the criminal code of Bamberg of 1507, which prescribed caution and private prosecution in these cases.29

23The opinion of learned lawyers was important in abduction cases: if a woman is abducted against the will of her husband or her father (but with her own consent) and the latter brings action against an abductor, then the punishment follows (art. 117). The same provisions are found for adultery cases (art. 119). The punishment, though, is unspecified, and can be inferred from Article 121 on bigamy: the article says that although bigamy is an even more heinous crime than adultery, the death penalty shall not be applied, which means that adultery was punished by death. The death penalty was also reserved for rape (art. 118) but only in cases of “honest women”, and with solid proof. The category of honest women excluded known whores, because rape deprived women of honour, which whores were not considered to have. Attempted rape was punished according to the circumstances and social rank of the accused. The trafficking (selling) of women and children resulted in being stripped of honour and receiving the common punishment (art. 121) while procurement (or pimping) might mean banishment, the stocks, the cutting off of ears or corporal punishment (art. 122). This list of sex offences presents a hierarchy of abominations: bestiality, same-sex relations, rape and adultery being among the most dangerous and heinous of crimes, while various types of fornication were allowed some judicial discretion.

24European military codes reproduced the outline of the CCC’s structure and procedural recommendations. Crimes against nature usually came first, followed by abduction and rape, then bigamy, prostitution (whoring) and procurement. We will next consider closely offences which reflected the policing of the sexual behaviour of officers and soldiers within the army, that is, same-sex relations, sex with animals, and non-violent heterosexual offences.

Sodomy and bestiality

  • 30 Lünig 1723: 117, 148, 428, 585, 616, 673, 817, 1032, 1061, 1082, 1106, 1129, 1144, 1154, 1158, 1175 (...)
  • 31 Eder 2004: appendix I, 159-165.
  • 32 Artikul voinskii s ktarkim tolkovaniem 1735: 180-181. On legal attitudes to homosexuality in early (...)

25Same-sex relations and sex with animals came under the charge of sodomy and were especially disturbing for the military. Death by burning at the stake was universally prescribed for these offences. The Imperial military codes of 1672 (art. 20) and 1682 (art. 20), the French code of 1695 (art. 18), the Osnabrück-Brunswig code of 1688 (art. 17), the Swabian code of 1710 (art. 13) and other German codes either all referred to the CCC for punishment, or state that death should be by burning. The Swedish code of 1683 gives an alternative punishment – beheading, but reserves burning for bestiality.30 English “Articles of War” usually referred such cases to the civil courts, which often imposed the death penalty for this crime. Sodomy was sometimes defined as one of the most serious offences and punishable by death, as in case of the articles of 1749 (art. 29).31 The Russian military code of 1716 is the only exception from this general European attitude to sodomy and bestiality. Bestiality resulted in “harsh corporal punishment” while sodomy (muzhelozhstvo) invoked the death penalty only in cases of rape, although it did provide an alternative punishment (being sent to the galleys). Voluntary same-sex relations received “harsh corporal punishment” as in bestiality cases (art. 165-166).32

  • 33 Puff 2003: 117.

26Accusations of sodomy were often used in ideological pamphlet, as a form of warfare, to create a dark and deviant image of the enemy. During the Franco-German Wars in northern Italy (1494-1527) – wars that relied heavily on the manpower and military expertise of Swiss mercenaries – accusations of sodomy became a useful method of scapegoating, commonly applied to unpopular superiors, and used to justify resistance to military discipline or to characterize adversaries. According to the Swiss chronicler Fridolin Baldi, the Pavia campaign of 1512 was directed against “heretics” – otherwise known as “sodomites”. In the context of the Italian wars, to defame a man as a sodomite meant that he was a traitor, who had submitted sexually and politically to foreign forces.33 Foreign travellers in Muscovy in early modern times often commented upon the unusual tolerance for sodomy that they found in Russia, which helped to create an image of barbarity and moral depravity. Adam Olearius (1599-1671), a German scholar and secretary to the imperial ambassador to Russia in 1633-1636, noted:

  • 34 Olearius 1662: 81. See also: Zelenina 2007.

all their discourse is of the abominations which they themselves have done, or seen committed by others, making ostentation of the crimes which here would be expiated by fire, and the memory thereof buried in their ashes. But as they are wholly given up to all licentiousness, even to sins against Nature, not only with Men, but also with Beasts, he who can tell most stories of that kind, and set them out in most gestures, is accompted the bravest Man. Their Fidlers put them into songs, and their Mountebanks make public representations of them, and stick not to show their Breeches.34

27The English considered sodomy a “Papist” crime. Daniel Defoe, in his poem The True-Born Englishman, locates the origin of this offence in Italy:

  • 35 Defoe 1889: 187.

Lust chose the torrid zone of Italy,
Where blood ferments in rapes and sodomy:
Where swelling veins o’erflow with living streams.35

  • 36 Cited in Gilbert 1976: 73.
  • 37 Gilbert 1976.

28At the same time, officers and soldiers were always under suspicion of indulging in “unnatural vices”. Anthony Gilbert points out that same-sex relations were quite widespread in the British navy, despite sodomy being considered a capital offence in Britain until 1861. Thus a British officer from a later period reported, “To my knowledge, sodomy is a regular thing on ships that go on long cruises. In the warships, I would say that the sailor preferred it.”36 Yet, same-sex relations were harshly prosecuted. During the War of the Spanish Succession, death sentences for sodomy constituted 27 per cent of all death sentences imposed by naval courts-martial (by way of comparison, 63 per cent of death sentences were inflicted for desertion and only 4.5 per cent for murder). The same pattern of executions remained until the early nineteenth century: in the period from 1756 to 1806, 30 per cent of all accused of same-sex relations (buggery) were executed.37

  • 38 Rosen 2006: 79-81.

29In other countries, however, prosecution for same-sex relations did not result in such bloodthirsty sentences. Thus in Denmark only six persons were prosecuted in the seventeenth and eighteenth centuries for buggery, while many more were charged with bestiality. In 1628 two Scotsmen (a lieutenant-colonel and a private) were burnt at the stake at Copenhagen, after which King Christian IV appointed a commission of bishops and professors of divinity to prepare a statute on the religious discipline of the population: the Statute on the Authority of the Church over the Unrepentant (1629). In 1663 Sergeant Claudi Amberg molested a thirteen-year-old boy (the boy said it happened when he was asleep). His commanding general could not figure out the charge, and asked the War Office for help. He never received any answer from them and finally banned the sergeant from his regiment. In 1674 Captain Frederik von Basse fled to “another kingdom” after complaints made by his wife that accusations by soldiers under his command that he had committed sodomy had not been investigated. The soldiers insisted they had been coerced and abused by their captain, but aside from being divorced by his wife, von Basse did not receive any other punishment.38

  • 39 In 1744, the death penalty in Russia was abolished for the majority of capital offences, including (...)
  • 40 RGADA 210/11/MS/226 ff. 291, 293, 313.
  • 41 RGADA 210/13/BS/597 ff. 25-27.
  • 42 RGVIA 8/3/1401.
  • 43 Gilbert 1976: 74.
  • 44 Rosen 2006: 82.

30In Russia, although prosecution for same-sex relations was quite harsh, the death penalty39 was never applied to those convicted of same-sex relations, even in cases of the rape of minors. Thus in 1642 a boy was raped by a local soldier, who, when convicted, received harsh corporal punishment (beating by a knout).40 In 1655 Captain Afanasii Spiridonov raped a soldier’s son and was sentenced to corporal punishment in the form of being whipped by a knout and then to imprisonment in a monastery.41 After the death penalty was abolished in Russia in 1744, corporal punishment and penal labour remained regular punishments for same-sex rape. In 1768, Sergeant Evdokim Shenanov molested a boy and was sentenced to running the gauntlet (six times through five hundred people) and demotion.42 Corporal punishment and running the gauntlet were also applied in the British navy, and the German, Danish and Swedish armies, to name just a few. In 1762, Martin Billin and James Bryan received one thousand lashes for buggery.43 In 1742, a Danish soldier named Jacob was sentenced to run the gauntlet sixteen times (300 men) for having an affair with one Peter Jessen.44

  • 45 Liliequist 1991: 395; Liliequist 1992: 51.
  • 46 Muravyeva 2011: 86-94; RGVIA 8/1/1520, 8/1/1796, 8/3/315, 8/3/869, 8/3/968, 8/3/1353.
  • 47 Hekma 1991: table 1.

31The close attention paid to same-sex relationships in the army and navy might be explained by the fear that such homosocial environments might distract all these men (especially young men) from reproduction: after all, they spent long periods away from women, or from their wives, together in compact male units. Harsh prosecutions were supposed to remind them of their Christian duties, first of all, of their primary duty – to procreate. However, in some national contexts, copulation with animals was seen as a more dangerous act than same-sex relations with other men. Thus in Northern Europe, for instance in Denmark and Sweden, incidents of prosecution for same-sex relations were quite low, whilst trials for bestiality greatly outnumbered those for sodomy. Sweden stands out as the country with the most prosecutions for bestiality: one thousand and five hundred trials were conducted there between 1635 and 1754. Military men, mostly rank and file soldiers, constituted almost fifteen per cent of all the accused.45 By contrast in northwest Russia, there were few trials for bestiality (35 in total for the seventeenth and eighteenth centuries), while Russian military courts tried only eight cases during the eighteenth century.46 In a late nineteenth-century sample from Holland, fourteen soldiers were tried for bestiality.47

32Taken together, these prosecutions for non-heterosexual relations suggest that the state paid close attention to and strictly policed the boundaries of permissible sexual behaviour among men, in order to commit them to heterosexuality.

Fornication and whoring

  • 48 Lünig 1723: 117, 428, 585, 616, 673, 867, 929, 1032, 1061, 1082, 1106-7, 1129.
  • 49 Hacker 1981: 647-648.
  • 50 Defoe 1741: 82-83.

33Illicit heterosexual sex did not result in the death penalty, but was still harshly punished by a variety of corporal punishments, demotion and banishment. However, the punishment often depended on the military judge’s or commander’s decision.48 Almost all military codes prohibited prostitution and banned the presence of whores in camps or on the march. At the same time, armies needed women to do all the support work and domestic duties, such as sewing, cleaning, washing, cooking and satisfying sexual demands, so the number of female camp-followers seemed to contemporaries to be quite substantial. Von Wallhausen (c. 1580-1627) in his Book on War Maneuvers (1617) claimed that “among three thousand German soldiers […] you will undoubtedly have four thousand prostitutes, servant-girls, valets and others serving the army.” Scholars give estimates of “100,000 soldiers’ wives, whores, manservants, maids and other camp-followers” being present near the 40,000-man Imperial army in 1648.49 The majority of these women were soldiers’ wives and widows and it was they who were accused of prostitution. However, it was not quite so simple. Defoe’s novel, The Life & Adventures of Mrs Christian Davies Commonly Called Mother Ross, describes the multiple tasking women did in the army: Mother Ross earns her pay as a housekeeper, sutler, whore, laundress, cook and even a soldier at one time or another. In Defoe’s book, she narrates her life story, including the times she was raped, and also evokes the behaviour of soldiers’ wives. She describes being insulted by a soldier, while she was a petitioner, as follows: 50

I waited at the Door, with my Child in my arms. While I was at my Post, a Soldier who had served Abroad seeing me, very wisely concluded, that I was a leud Woman, and began to treat me as such in the grossest Language, and after a Volley of G–d D–myes mix’d with the common Flowers of [R]hetorick B–h and W[ho]re, said it was a burning Shame the Nobility should encourage a Pack of idle lewd Bs, and support them as their Bds with that Bread which they ought rather to distribute among such as had ventured their Lives, and spilled their Blood in the Service of their Country; he concluded this friendly Salutation with a Blow of his Stick cross my Breasts.”

  • 51 Cited in Hacker 1981: 651.

34Any female camp-followers, whether canteen-holders, or soldiers’ wives or widows, were generally labelled as whores. Germans called the soldier in charge of the baggage train the Hurenweibel [the whoremaster], “for [which] post an old and experienced soldier is chosen and used, for in his power and under his command is the whole baggage train as well as whores and boys.”51 The presence of prostitutes in the army was seen as a means of preventing rape (as in general, prostitution has often been considered as a means to prevent male sexual frustration). Thus Sancho de Londono, a Spanish officer, noted in 1589:

  • 52 Cited in Hale 1968: 184.

For, accepting the fact that well organized states allow such persons in order to avoid worse disorders, in no state is it as necessary to allow them as in this one of free, strong and vigorous men, who might otherwise commit crimes against the local people, molesting their daughters, sisters and wives.52

35In the eighteenth century, armies continued to have female sutlers and camp-followers, since army supplies remained partially in the hands of non-combatants. However, the main problem was to clear the camps and garrisons of them. Thus in the Ukrainian town of Vasil’kov, where the troops had their quarters, the number of whores multiplied, according to the report of one Major Kul’nev. In 1744, after exhausting the means of prosecution on the local level, he addressed the Kiev Regional Chancellery, as follows:

  • 53 Andreevskii 1885: 140-141.

I have complained to the local Vasil’kov mayor, Hieromonk Maksim, several times and asked him to deal with them [whores], but he approved of them and announced them good people; and immediately after that, at night, a local woman Olena Stepanikha was caught by one of my soldiers fornicating, and I had reported this woman before and I had asked to punish her as a whore, but he did nothing and let her go, which means that he covers up for whores; and I ask your directions as to what to do with this woman who is in my prison now.53

  • 54 TsGIA SPB 19/1/5.

36Apparently, the local mayor (being also a high-ranking priest) collected profits from the prostitution business and acted as a pimp in many cases, as the special committee found out later. Camp brothels were often organized by soldiers’ wives and widows with the support of the local authorities, who would personally profit from the trade. This was especially true of big cities, such as St. Petersburg, which contained large numbers of soldiers and sailors. In 1720, the St Petersburg consistory court received a case from the military court of the Preobrazhenskii lifeguard regiment, which also handed over two women, Maria Kirillova and Maria Vasil’eva, to the court. The first woman, Maria Kirillova, had successfully run a brothel before she was arrested on charges of bigamy. She already had a criminal record for fornication. Kirillova’s house was very popular among the guards, and five soldiers appeared in court as character witnesses for Maria. Her second husband organized a surety bond for her release. Altogether sixteen women were arrested for prostitution by the local authorities, but they were soon released without punishment as they all happened to be claimed by their husbands, all soldiers, who refuted the charges against them. As a result, Kirillova continued to run her house as a brothel in the 1720s.54

  • 55 RGVIA 8/3/122.
  • 56 RGVIA 8/2/274, 8/1/1757.

37In Russia, military courts treated fornication as a minor disciplinary offence. They inflicted corporal punishment on ordinary soldiers and imposed fines on officers caught in brothels. Thus second lieutenant Vasilii Naumov was fined a third of his pay for regularly visiting brothels in 1747.55 But adultery and fornication with an “honest woman” were serious offences and resulted in harsh punishments, such as demotion in rank and harsh corporal punishment.56 Fornication and adultery comprised 30% of all sex offence cases between 1721 and 1800 in Russia. The other 44% were rape cases (half of these rape cases involved under-age girls). Therefore, the proceedings of military courts suggest that the state paid significant attention to the morality and sexual conduct of military men.

Conclusion

38The seventeenth and eighteenth centuries were to be crucial in the emergence of modernity in European societies. One of the most important aspects of this transformation included the establishment of norms and canons of sexual behaviour – related to a new gender order based on heteronormativity, procreation, monogamy and patriarchy – that were appropriate to the new nation state. Sexuality was justified only as a means of procreation and only within a legal marital union. Extramarital and non-procreative sexuality was prosecuted and punished. The army became an experimental field for testing new procreative models and social control tools, and it proved to be successful in transforming male sexual behaviour into a regularized and policed modus operandi. Military law often became a source for the criminal law of European countries, especially in providing harsher patterns of prosecution for prohibited sexual practices. Both rank and file soldiers and officers were called upon to be model citizens, whose sexual behaviour had to provide canons of masculinity for other men (and women). These canons included (self) controlled heterosexual behaviour in a monogamous union resulting in reproduction.

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Bibliography

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Belli, Pierino. 1936. De re militari et bello tractatus, E.C. Nutting, ed. Oxford: Clarendon Press.

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Defoe, Daniel. 1741. The Life and Adventures of Mrs. Christian Davies: Commonly Call’d Mother Ross. London.

Gentilis, Alberico. 1877. De Jure Belli. Libri Tres, T.E. Holland, ed. Oxonii. Y. Typographeo Clarendoniano.

Koehler, Josef and Willy Scheel (hrsg). 1900. Die Peinliche Gerichtsordnung Kaiser Karls V: Constitutio Criminalis Carolina. Berlin: Halle S.Ss., Buchhandlung des Walsenhauses.

Lünig, Johann Christian (ed.) 1723. Corpus Juris Militaris. Leipzig: Lankisch.

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Notes

1 On the military revolution, see Ayton & Price 1998; Black 1991; Childs 2001; Downing 1992; Stradling 1994.

2 The codification of military law, that is, the collection and systematic arrangement, usually by subject, of the laws or statutory provisions, rules, and regulations of a specific country or land governing warfare and military discipline, started in the early sixteenth century, before lawyers attempted the codification of state laws, something which, as scholars agree, dates from the late seventeenth and eighteenth centuries. On codification, see Cartuylels 1997; Daston & Stolleis 2008; Downing 1992.

3 On the concept of citizenship in early modern Europe, see Wells 1995; Linklater 1996.

4 On Russian military law, see Keep 1985; Stevens 1995; Paul 2004.

5 On the natural law school and sexuality in Europe, see Muravyeva 2013.

6 Roberts 1956; Parker 1976; Parker 1988; Black 1998.

7 Black 1991; Black 2008. On the discussion, see Rogers 1995; De Moor 1997.

8 Gentilis 1877: 241. On rape in the sixteenth and seventeenth century, according to the school of natural law and military law, see Muravyeva 2012a: 17-19.

9 Russell 1977: 127-212.

10 Urs Graf (1485-1529) was also a mercenary soldier. He depicted mercenaries in his paintings such as The Battlefield of Marignano or Consiglio di guerra (The Atrocities of War).

11 See, for example, Hale 1983; Baron 1966: 430-440; Moxey 2004: 67-100; Mosse 1998: 2-34.

12 Erasmus 1813: 67. For Erasmus’s views on the just war, see Fernandez 1973.

13 Uchenie i khitrost’ ratnogo stroeniia liudei 1647: f. 15rev-16. See also: Hale 1971.

14 Belli 1936: II, 61-62.

15 Ibid.: II, 177-178.

16 Ibid.: II, 80-81.

17 Ayala 1912: II, 127.

18 Ayala 1912: II, 174.

19 Ayala 1912: II, 174-175.

20 On Grotius’s attitude to rape and sex crimes, see Muravyeva 2013: 76-79.

21 All these regulations are published in Lünig 1723, and further analysis and references are given according to this publication.

22 Vattel 1797: 299.

23 “Kaysers Friderici III. und des H. Röm. Reichs Heers = Ordnung wieder die Türcken, bey geneiner Reichs Versammlung beliebet Anno 1486” in Lünig 1723: 1-3.

24 Lünig 1723: 4.

25 Lünig 1723: 58-76; 277-280.

26 Tallett 1997: 122-128.

27 On this trial see Brauer-Gramm 2001; Kemper 2004, ch. I.

28 Kohler and Scheel 1900: art. cxv-cxxii.

29 Bambergische Peinliche Halsgerichtsordnung 1507: 39b (art. cxlii).

30 Lünig 1723: 117, 148, 428, 585, 616, 673, 817, 1032, 1061, 1082, 1106, 1129, 1144, 1154, 1158, 1175, 1194, 1199, 1347.

31 Eder 2004: appendix I, 159-165.

32 Artikul voinskii s ktarkim tolkovaniem 1735: 180-181. On legal attitudes to homosexuality in early modern Russia, see Muravyeva 2012b.

33 Puff 2003: 117.

34 Olearius 1662: 81. See also: Zelenina 2007.

35 Defoe 1889: 187.

36 Cited in Gilbert 1976: 73.

37 Gilbert 1976.

38 Rosen 2006: 79-81.

39 In 1744, the death penalty in Russia was abolished for the majority of capital offences, including sex crimes.

40 RGADA 210/11/MS/226 ff. 291, 293, 313.

41 RGADA 210/13/BS/597 ff. 25-27.

42 RGVIA 8/3/1401.

43 Gilbert 1976: 74.

44 Rosen 2006: 82.

45 Liliequist 1991: 395; Liliequist 1992: 51.

46 Muravyeva 2011: 86-94; RGVIA 8/1/1520, 8/1/1796, 8/3/315, 8/3/869, 8/3/968, 8/3/1353.

47 Hekma 1991: table 1.

48 Lünig 1723: 117, 428, 585, 616, 673, 867, 929, 1032, 1061, 1082, 1106-7, 1129.

49 Hacker 1981: 647-648.

50 Defoe 1741: 82-83.

51 Cited in Hacker 1981: 651.

52 Cited in Hale 1968: 184.

53 Andreevskii 1885: 140-141.

54 TsGIA SPB 19/1/5.

55 RGVIA 8/3/122.

56 RGVIA 8/2/274, 8/1/1757.

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References

Electronic reference

Marianna Muravyeva, « “Do not rape and pillage without command”: sex offences and early modern European armies », Clio [Online], 39 | 2014, Online since 10 April 2015, connection on 24 June 2017. URL : http://cliowgh.revues.org/466 ; DOI : 10.4000/cliowgh.466

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About the author

Marianna Muravyeva

Marianna Muraveyya, holds a Marie Curie research fellowship at Oxford Brookes University, and works on the history of crime, the law, gender and sexuality in modern Europe. She is a member of the editorial board of Aspasia, the International Yearbook of Central, Eastern and South-Eastern european Women’s and Gender History. She has co-edited Gender in Late Medieval and Early modern Europe, Abingdon, Routledge, 2013 ; Shame, Blame and Culpability: crime and violence in the modern state, Abingdon, Routledge 2012 ; and Bytovoe nasilie v istorii rossiskoi povsednevnosti [Domestic violence in the history of Russian everyday life] St Petersburg, EU Press, 2012. Articles include : “Bytovukha: Family violence in Soviet Russia’, Aspasia 8, 2014, pp, 90-124 ; “ ‘Till Death Do Us Part’: Spousal homicide in Early Modern Russia”, in History of the Family, 3, 2013, p. 306-330; and “Le viol dans les codes militaires russes de Pierre le Grand à l’Armée rouge”, in Raphaëlle Branche and Fabrice Virgili (eds), Viols en temps de guerre, Paris, Payot, 2011, p. 25-42.
muravyevam@gmail.com

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