Edward Coke: "Buggery, or Sodomy," 1644
"it deserveth death"
Coke, a prominent English judge, state prosecutor, and early systematizer of statute, discussed "Buggery, or Sodomy" in a section on "High Treason" in the third part of his famous commentary on the Laws of England, first published there in 1644.(1) Because this work greatly influenced the colonists' interpretation of statute, Coke's work is quoted here in some detail.
Coke's opening lines on "Buggery, or Sodomy" stated:
If any person shall commit buggery with mankind, or beast: by authority of Parliament this offense is adjudged felony without benefit of Clergy....
"Buggery," Coke continued,
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.
Buggery vs. Boy Love
Coke distinguished between "Bugeria" (which he claimed was "an Italian word" for sodomy) and "Paederastes or Paiderastes" (which he called "a Greek word" meaning "Amator puerum," lover of pubescent boys). Boy love, he said was "but a Species of Buggery," and added: it was complained of in the English Parliament "that the Lumbards [Italians from Lombardy] had brought into the Realm the shameful sin of Sodomy, that is not to be named."
Contrary to Coke's suggestion (says historian Robert Oaks) the term buggery did not derive from an Italian word "Bugeria." That Italians from Lobardy introduced sodomy into England was folklore reflecting an economic conflict; Coke cited as his source a Parliamentary debate in which representatives of English traders attributed sodomy to a rival group of Lombard moneylenders.
The suggested punishments for buggery or sodomy were Coke's next subject:
Our ancient Authors do conclude that it deserveth death ... , though they differ in the manner of punishment.
One author said those guilty of sodomy should be burnt, "and so," added Coke, "were the Sodomites by Almighty God." Other authors said that "Those who commit unchaste acts with animals and sodomites are to be buried alive." In "ancient times," said Coke, males convicted of buggery were hanged, females were drowned (the reference here was apparently to female bestiality). In England of his own day, said Coke, as felons, those convicted of buggery were hanged by the neck.
Coke next considered the language used in English references to buggery. "Detestable and Abominable," he said, were "just attributes" of the crime. The phrase "amongst Christians not to be named" was used in the "usual Indictment of this offence." The phrase "carnall knowledge" appeared in the indictment passage referring (in Latin) to "sexual relations," specifically, "penetration," or "the thing in the thing, either with mankind, or with beast." The "least penetration maketh it carnall knowledge," said Coke. A mere "ejaculation of seed," he said, did not constitute buggery; analogy was made to rape, in which ejaculation without penetration did not constitute the crime.
Both Parties are Criminals
In buggery, Coke stated, both the "agent" and "consentient" (consenting party) were felons. That accorded with God's law as expressed in Leviticus, which said that, if a man lay with a man as with a woman, both had committed abomination, both must die. This also accorded with "the ancient rule of law" which said (in Latin) that "those who do it and those who consent to it were punished with like penalty." "The Sodomites came to this abomination by four means," said Coke,
by pride, excess of diet [gluttony], idleness, and contempt of the poor.
If the party buggered be within the age of discretion [under fourteen], it is no felony in him, but in the agent only.
In buggery, as in other felonies, said Coke, all accessories to the crime were also considered parties to the act.
Discussing the application of the buggery law to women, Coke claimed (falsely) 'that the English statute prohibited any "person" (male or female) from committing the crime with "mankind or beast." (The English law simply prohibited "Buggery . . . with mankind or beast," without specifying the sex of the parties.) The reference to females in the English buggery law was explained, said Coke, by the fact that
somewhat before the making of this Act a great Lady committed buggery with a Baboon, and conceived by it....
Thus did a curious bit of English folklore enter an influential commentary on the capital buggery law.
Coke concluded that "buggery" was one of four "crying sins" mentioned in the Bible-sins crying out for punishment. The "crying sin" of the "Sodomites" referred to Genesis 18:20-21. There God said that because "the outcry against Sodom & Gomorrah" was great he would visit those cities to see if the outcry was true. The last "crying sin" cited by Coke was "the voice of the op~ pressed and the unpaid wages of labor," a reference to several biblical passages condemning the economic oppression of workers by employers (passages now not often cited). The sins of the Sodomites, Coke thought, included not only sodomy, but the exploitation of labor.
- Jonathan Ned Katz, Gay/Lesbian Almanac (NY: Harper & Row, 1983), pp. 88-89, citing Edward Coke,The Third Part of The Institutes of the Laws of England . . . (London: Printed by M. Flesher for W. Lee and D. Pakeman, 1644), ch. 10, pp. 58-59. The Dictionary of National Biography says that The Third Partof Coke's Institutes was finished in 1628 and first published in 1644. On Coke also see Robert Oaks, "Perceptions of Homosexuality by Justices of the Peace in Colonial Virginia, " Sexualaw Reporter, vol. 4, no. 2 (Apr./June 1978), p. 35; Alex K. Gigeroff, Sexual Deviations in the Criminal Law (Toronto: University of Toronto Press, 1968), pp. 7-12. On the Lombard money lenders see Jonathan Ned Katz, Gay/Lesbian Almanac (NY: Harper & Row, 1983), Part I, Intro., n. 21. Katz thanks Jaime Vidal for identifying the "crying sins." In Catholic tradition the four crying sins are (1) voluntary homicide, Gen. 4:10; (2) the sins of Sodom and Gomorrah, Gen. 18:20-21; (3) oppression of widows and orphans, Exodus 22:22-24; (4) defrauding the laborer of pay. See Letter of James 5:4: "But look, here is the pay of the reaper you hired and whom you cheated, and it is crying out against you! And the cries of the other la~orers you swindled are heard by the Lord of Hosts himself." The next verse adds: "Yes, you have had a magnificent time on this earth; you have fattened yourselves up-for the day of slaughter!" On the crying sins also see Michael Goodich, Unmentionable Vice, p. 61.