There was no royal or parliamentary law against homosexual activity in England until 1533, but a number of medieval legal sources do discuss “sodomy:.
Fleta, xxxviii.3: Those who have dealings with Jews or Jewesses, those who commit bestiality, and sodomists, are to be buried alive after legal proof that they were atken in the act, and public conviction”
[Fleta, seu Commentarius Juris Anglicani, (London: 1735), as trans in Derrick Sherwin Bailey, Homosexuality and the Western Christian Tradition, (London: Longmans, Green, 1955), 145]
Bailey notes that it is improbable that the penalty or burial alive was ever inflicted in medieval times [although Tacitus refers to it among ancient Germans in Germania 12].
Britton, i.10: “Let enquiry also be made of those who feloniously in time of peace have burnt other’s corn or houses, and those who are attainted thereof shall be burnt, so that they might be punished in like manner as they have offended. The same sentence shall be passed upon sorcerers, sorceresses, renegades, sodomists, and heretics publicly convicted”
[Britton, ed. F.M. Nichols, (Oxford: 1865), Vol 1:41-42 and Bailey, 146]
Bailey notes that this implies a process in which ecclesiastical courts made the charges and convictions and the state put them into effect. There do not seem, however, to have been serious efforts made to put theory into practice. The preamble to the 1533 Law seems to make this clear.
25 Henry VIII. C6
Le Roy le veult
“Forasmuch as there is not yet sufficient and condign punishment appointed and limited by the due course of the Laws of this Realm for the detestable and abominable Vice of Buggery committed with mankind of beast: It may therefore please the King’s Highness with the assent of the Lords Spiritual and the Commons of this present parliament assembled, that it may be enacted by the authority of the same, that the same offence be from henceforth ajudged Felony and that such an order and form of process therein to be used against the offenders as in cases of felony at the Common law. And that the offenders being herof convict by verdict confession or outlawry shall suffer such pains of death and losses and penalties of their good chattels debts lands tenements and hereditaments as felons do according to the Common Laws of this Realme. And that no person offending in any such offence shall be admitted to his Clergy, And that Justices of the Peace shall have power and authority within the limits of their commissions and Jurisdictions to hear and determine the said offence, as they do in the cases of other felonies. This Act to endure till the last day. of the next Parliament”
[Bailey, 147-148, and H. Montgomery Hyde, The Love That Dared Not Speak Its Name: A Candid History of Homosexuality in Britain, (Boston: Little, Brown, 1970) [British title: The Other Love]
Note that the law only ran until the end of the next Parliament. The law was reenacted three times, and then in 1541 it was enacted to continue in force for ever. In 1547, Edward VI’s first Parliament repealed all felonies created in the last reign [I Edw. VI. C.12]. In 1548 the provisions of the 1533 Act were given new force, with minor amendments – the penalty remained death, but goods and lands were not forfeit, and the rights of wives and heirs were safeguarded. Mary’s accession brought about the repeal of all Edward’s acts in 1548 [1 Mar c.1]. It was not until 1563, that Elizabeth I’s second Parliament reenacted the law [5 Eliz I. C.17] and the law of 1533 (not 1548) were given permanent force.
In 1828, the statute of 1563 was revoked by a consolidating act, but the death penalty was retained. In 1861 life imprisonment, or a jail time of at least ten years, was substituted for the death penalty. All these laws were against buggery, and indeed the law of 1828 had discussed matters of proof in terms of penetration. Note that other sexual activities were not specifically criminalised.
In 1885 Mr. Labouchere introduced an amendment to the Criminal Amendment Act of 1885. It read:-
48&49 Vict. c.69, 11: “Any male person who, in public or private, commits or is party to the commission of, or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour”
So for the first time private acts were brought under the scope of the law, as were acts other than anal penetration. This became the famous blackmailer’s charter, and was the law used to convict Oscar Wilde.
[for all the above see Bailey 145-152]
It was the Act of 1533, then, which first made buggery an offense under English criminal law. This law survived in various forms England until 1967, although it was amended in 1861 to substitute life imprisonment for the penalties of death and forfeiture of property.
But the direct effects of this law were not restricted to England. Because of England’s success as a colonial power, and its tendency to impose its entire legal structure on the ruled areas, legal prohibitions against homosexual activity derived from this law extended well outside England. In Scotland, for instance, (which has a separate legal system) the law was not changed until 1979. In many American states “sodomy” laws are still on the books, as also in former British colonies in the Caribbean.
.[ref. H. Montgomery Hyde, The Love That Dared Not Speak Its Name: A Candid History of Homosexuality in Britain, (Boston: Little, Brown, 1970)]
- The Law in England, 1290-1885, Fordham University, https://sourcebooks.fordham.edu/pwh/englaw.asp