Death penalty for buggery abolished in England, Wales and Ireland
When was the death penalty for buggery introduced?
The Buggery Act was passed in 1533. It was introduced in England by Henry VIII. Before that time Church courts punished the ‘sin’ of buggery. The punishment was death by hanging. A person’s property and land could also be taken.
The law was extended to Wales in 1543 and Ireland in 1634. The law did not apply to Scotland. (See 1889 Death penalty for Buggery abolished in Scotland).
How was buggery defined?
Buggery was not defined in the Act. What behaviour buggery included was left to the courts to decide. The courts called the crimes “unnatural acts”. At first they defined buggery as anal intercourse or oral intercourse by a man with a man or with a woman. Buggery was also defined as vaginal intercourse by either a man or a woman with an animal. It was changed later to exclude oral and vaginal intercourse. It was very rare for a woman to be involved in a prosecution.
Why was the death penalty for buggery introduced?
Henry introduced capital crimes (crimes with the death penalty) to make himself more powerful and take power away from the Church.There is no evidence that this Act was passed because of any real social issue with same sex acts. At the time fear of the death penalty was used by those in power across Europe to keep control over a population spread out over a wide area. It was only from the 1700s that the focus was more on justice and controlling crime.
In the first 100 years Walter Hungerford was the only man executed for buggery. He was charged with treason and heresy. He was charged with buggery as well. This was to humiliate him and it also allowed the government to take all his property and possessions.
Were there many capital crimes?
Henry introduced the death penalty for many crimes. These included piracy, servants stealing employer’s belongings, theft from fish ponds and witchcraft.
Many capital crimes were also added in the early 1700s. These laws protected wealthy people. You could receive the death penalty for shoplifting, pickpocketing and ‘adopting a disguise’. By 1810, there were over two hundred capital crimes. However, buggery remained one of the most serious and shaming.
How many men were executed for buggery?
Prosecution for buggery was rare until the 1700s. In England most executions for buggery happened after 1800. From 1806 to 1861 there were 8921 prosecutions for buggery.The courts gave 404 death sentences. 56 men were executed. James Pratt and John Smith were the last two Englishmen hanged for buggery in 1835.
Compare the figures for all capital crimes. In England and Wales in the 60 years between 1770 and 1830 the courts gave 35,000 death sentences. 7000 people were executed. A death sentence was seen as a maximum penalty. Judges often looked for ways to avoid it.In 1823judges were allowed to give pardons for the first time. This meant many death sentences were not carried out.
Was buggery the only ‘unnatural offence’ punished?.
All sexual acts between men could be seen as an attempt to commit buggery. Attempting to commit an offence was a crime in common law. By the 1800s there were many prosecutions for all sorts of behaviour, not just buggery. It did not matter if the behaviour was with or without consent, in public or in private.
In England at this time it was an individual who started an investigation and prosecution. It was all very local. Men accused other men of sex acts that happened in everyday meetings. The police were only involved in starting investigations from the 1840s.
Why was the death penalty abolished?
In the nineteenth century so many people were being executed that prisons could not cope. Members of Parliament argued for punishments to be less harsh. A parliamentary committee in 1818 recommended a reduction in the number of capital punishments. Capital crimes were gradually removed over the next forty years. In 1841 there was a plan to remove the death penalty from both buggery and rape but the House of Lords only agreed to remove rape.
What changed in 1861?
Finally, the number of capital crimes was reduced to four; Murder, High Treason, Arson in a Royal Dockyard and Piracy. At the same time many Acts were combined to make the law simpler. The Offences against the Person Act 1861 (OAPA1861) combined a number of earlier Acts for England, Wales and Ireland including the Buggery Act 1533. The Buggery Act was included almost word for word except for the punishment. The new punishment for buggery was between ten years and life imprisonment.
OAPA Act 1861 also introduced two new crimes of ‘attempted buggery’ and ‘indecent assault’ upon a male. This was really just catching up with what had been going on in court prosecutions under common law. These had a penalty of three to ten years in prison or else two years in prison with hard labour. The courts did not convict easily. For attempted buggery a ‘conspiracy’ had to be proved. For indecent assault an actual violent assault (or threat of violence) had to be proved.
You can read about Fanny and Stella’s trial for conspiracy in the Personality Dateline.
Voices and Visibility 2019