The Buggery Statute
The following selections illustrate the legal discourse concerning sex between men during the eighteenth century in Britain. There was no change in the law during the course of the century. Unfortunately the discussion among legal experts seems to focus only on the felony of sodomy, whereas in actual practice the vast majority of prosecutions were for the misdemeanour of "attempted sodomy" or "assault with attempt to commit sodomy". The concept of "attempted sodomy" covered any form of sex between men, ranging from deep kissing and groping and mutual masturbation to oral intercourse, in other words anything short of what was called "the full action" or completed anal intercourse. Only a few of the commentators acknowledge that "sodomy" commonly meant sex between men; prosecutions for sex between humans and animals were rare, and prosecutions for anal intercourse between a man and a woman were nearly nonexistent. There was thus a gap between legal theory and legal practice.
Review of Laws Against Sodomy
C H A P. IX.
Of private Felonies against the Body of the Subject.
PRIVATE Felonies against the Body of the Subject may be committed, 1: By sodomy. 2. By rape. 3. By forcible marriage or defilement of women. 4. By polygamy. 5. By maihem.
All these offences (polygamy excepted) are capital; but perhaps in some of them milder punishments might more effectually prevent the perpetration of such shocking crimes. [p.370]
S E C T. I.
WITH respect to the first, which is of such an unnatural and abominable nature, that it is difficult even to credit its existence, the severity of the punishment does not seem calculated to diminish the frequency of the offence, though by the laws of most nations, antient and modern, it has been capitally punished.
Of the laws of other natons in Sodomy.
Among the Grecians, the punishment of this abominable vice was sometimes discretionary, and at other times punished with death.
Among the Romans, by the Scatania Lex. the penalty was only pecuniary, but it was afterwards made death.
By the Jewish law it was punished with death. [p.371]
By the law of France the offender suffers death by burning.
By the law of Scotland it is punishable by death.
It does not appear, that by the common law of England this detestable sin was capitally punished. We read that in the time of Edw. III. a complaint was made in parliament, that the Lombards had brought this shameful sin into the realm.
Our antient authors, says Lord Coke, conclude that it merits death, ltimum supplicium, though they differ in the manner of inflicting it.
Briton says, that sodomites and miscreants shall be burned, as they were by the judgment of Almighty God.
Fleta saith, Pecorantes et Sodomitae in terra vivi consodiantur, and, with this punishment,the Mirrour agrees, pur le grand abomination. And in another place, he [p.372] saith, Sodomie est crime de majestie vers le roy celestie.
In antient times, the man was hanged for this offence, and the woman was drowned, of which we find examples in the reign of Rich. I. And this explains the antient franchises de furca et fossa, of the gallows and the pit, for the hanging upon the one, and drowning in the other.
But fossa is taken away, and furca remains, and, at this time, the judsgment in all cases of felony is, that the person attainted shall be hanged by the neck, until he or she be dead.
This crime is expressly forbidden in holy writ; cum masculo non commiscearis coitu foemineo, quia abominatio est. Cum omni pecore non coibus, nec maculaberis cum eo. Mulier non succumbet jumento, nec miscebitur ei, quia scelus est, &c.
The act 25 Hen. VIII. hath adjudged it felony, and hath taken away the benefit of clergy from the delinquent. [p.373]
Women are within this statute, and if they commit this crime with a beast, incur the same punishment; and the word person was used in the act to extend it to them. This extension was thought more essentially necessary, as some time before the making of this act a great lady had been guilty of this abominable bestiality with a baboon, and had conceived by it. [p.374]
SOURCE: Henry Dagge, Considerations on Criminal Law, Dublin, 1772.
1. BUGGERY (from the Italian bugarone, a buggerer, this vice being said to have been brought into England out of Italy by the Lombards) is a detestable and abominable sin, amongst Christians not to be named, committed by carnal knowledge against the ordinance of the Creator, and order of nature, by mankind with mankind, or with brute beast, or by womankind with brute beast.
2. The detestable vice of buggery committed with mankind or beast shall be adjudged felony, and such process therein be used as in cases of felony at the common law.
And the offenders being convicted by verdict, confession, or outlawry, shall suffer pains ofdeath and losses of their goods, lands, &c. as felons; and no person offending in any such offence shall be admitted to his clergy.
And justice of peace shall have power to inquire of the said offence, as in other felonies.
3. Which said statute making it felony generally, there may be accessaries both before and after. But those that are present, aiding and abetting, are all principals. And altho' none of the principals are admitted to their clergy, yet accessaries before and after are not excluded from clergy.
4. If the party buiggered be within the age of discretion (which is generally reckoned the age of 14) it is no felony in him, but in the agent only. But if buggery be committed upon a man of the age of discretion, it is felony in them both. [p.90]
5. By the articles of the navy if any person in the fleet shall commit the unnatural and detestable sin of buggery or sodomy with man or beast, he shall be punished with death by the sentence of a court martial. [p.91]
SOURCE: The Duty and Authority of Justices of the Peace and Parish-Officers for Ireland, by Ed. Bullingbroke, Dublin, 1766.
History of the Buggery Statute
By the act of 25 H. 8. cap. 6. buggery with mankind or beast is enacted to be felony, and the felon excluded from clergy.
This statute was repeald by the general act of 1 E. 6. cap. 12. and in 2 E. 6. cap. 29. it was enacted to be felony without clergy, but withoutloss of lands or goods or corruption of blood.
But this act of 2 E. 6. was repeald by the statute of 1 Mar. cap. 1. and so both acts stood repeald until 5 Eliz.
But by the statute of 5 Eliz. cap. 17. the entire act of 25 H. 8. cap. 6. is revived and re-enacted, so that this offense stands at this day absolutely felony without benefit of clergy.
To make buggery there must be penetratio, as in case of rape.
A woman may be guilty of buggery with a beast within this statute. [p.669]
If buggery be committed upon a man of the age of discretion, both are felons within this law.
But if with a man under the age of discretion, viz. fourteen years old, then the buggerer only is the felon.
Those, that are present aiding and abetting, are all principals; the statute making it felony generally, there are or may be accessaries before and after, as in case of rape. But tho none of the principals are admitted to their clergy, yet accessaries before and after are not excluded from clergy. [p.670]
SOURCE: Sir Matthew Hale, Historia Placitorum Coronae. The History of the Pleas of the Crown, London, 1736, Vol. I.
Sect. 1. ALL unnatural Carnal Copulations, whether with Man or Beast, seem to come under the Notion of Sodomy, which was Felony by the antient Common Law, and punished, according to some Authors, with Burning; according to others, with Burying alive: But at this Day by Force of 25 H. 8. 6 & 5 El. 17 is punished in the same Manner as other Felonies, which are excluded from Clergy.
Sect. 2. In every Indictment for this Offence, there must be the Words Rem habuit veneream, & carnaliter cognovit; and consequently some Kind of Penetration, and also of Emission, must be proved; but any the least Degree is sufficient, and Emission is prima facie an Evidence of Penetration. [p.6]
SOURCE: William Hawkins, A Treatise of The Pleas of the Crown, Fifth Edition, London, 1771.
Sodomy is a carnal Knowledge of the Body of Man or Beast, against the Order of Nature: It may be co9mmitted by Man with Man, (which is the most common Crime) or Man with Woman; or by Man or Woman with a Brute Beast.
Some Kind of Penetration and Emission is to be proved, to make this Crime, which is Felony both [p.239] by the Common and Statute Law, in the Agent and all that are present, aiding and abetting; also in the Patient consenting, not being within the Age of Discretion.
This heinous Offence, in ancient Times, according to some Authors, was punished with Burning, though others say with burying the Offenders alive; and it is Reasonable it should be Felony, at least, to deter the abandon'd Vicious from the abominable Practices.
SOURCE: Giles Jacob, The Students Companion: Or, Reason of the Law. Designed to convey to all Students and others, the Fundamental Grounds, Reasons and Maxims of our Laws in General, in a plain and easy Method, collected from Authors of the best Authority. Third Edition, London, 1743.
CITATION: If you cite this Web page, please use the following citation:
Rictor Norton (Ed.), "The Buggery Statute", Homosexuality in Eighteenth-Century England: A Sourcebook, <http://rictornorton.co.uk/eighteen/legal.htm>, 15 July 2013.