Common Law

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Common law is the designation for a system of law that relies on longestablished custom and the evolving pattern of precedent established by court decisions. The law common to the whole realm–so termed originally to distinguish it from local custom-began in medieval England, and spread overseas with British colonization. Today, with various national modifications, the common law tradition characterizes most English-speaking nations, including the United States, and sets them apart from the so-called civil law countries (including Scotland), which derive their legal tradition from the Roman law codified by Justinian, then further refined by medieval jurists and commentators. A major feature of the common law is the role of jurisprudence, that is to say, of decisions rendered by the courts that enlarge or reduce the scope of existing laws or prior decisions and are then followed by other courts, so that they enter the body of law quite apart from the action of any executive or legislative authority. In other legal systems the courts either do not exercise this role or are formally denied the right to contravene the will of the legislature by altering an existing law or finding it unconstitutional.

The Medieval Background. The first mention of criminal punishment for homosexual behavior in the English common law tradition occurs in a somewhat eccentric treatise known as Fleta (ca. 1290), composed by an anonymous jurist at the court of Edward I. This text prescribes that sodomites (along with those who have sexual commerce with Jews and those guilty of bestiality) are to be buried alive. This mode of execution, which does not seem to have been adopted, is probably a reminiscence of a passage in Tacitus, which states that among the ancient Germans effeminate cowards were drowned in bogs. As this example suggests, early thinking was a mixture of learned and folkloric elements, grounded in Christian fear of otherness. The treatise known as Britton (perhaps by John Le Breton), which is only a few years later than Fleta, seems to have had more authority. Here sodomites are to be burned. Although there is little indication of enforcement of this punishment in England from this period, executions are known to have been carried out on the continent, where their sanction derived from an enactment of Justinian and served to link sodomites to heretics, who were also burned. As in the case of heretics, church officials and courts were charged with finding sodomites, who were then handed over to the secular arm for punishment. However, the king's court had the power of acting independently, and thus sodomy was a crimewhich partook of both canon (ecclesiastical) and common law.

From the Renaissance through the Eighteenth Century. In 1533, in keeping with a wave of antisodomy legislation on the European continent, Parliament enacted a felony statute against the "detestable and abominable vice of buggery," providing for the penalty of death (25 Henry VII c. 6). Reenacted under Elizabeth I and made perpetual, this act, which became the charter for all subsequent criminalization in the English-speaking world, secularized the crime, removing it from church jurisdiction and even denying benefit of clergy to the culprits. The language recurred somewhat later in statutes from the southern colonies in North America, though the more northerly ones, many of them under dissenter auspices, preferred to reinforce the wording with biblical language. In England only a few executions, and these by hanging, not burning at the stake, are known from the following two centuries, and Englishmen seemed content to discuss the matter as little as possible, a position taken as late as the Commentaries (1765-69) of William Blackstone, which says that the crime is "not to be named among Christians." However, a series of polemical pamphlets, such as John Dunton's The He-Strumpets (1707) and the anonymous Satan's Harvest Home(1749), began to stir up public opinion against the homosexual subculture that flourished in the British metropolis.

Modern Times. At the end of the eighteenth century, and into the second decade of the nineteenth, a number of executions took place, probably linked to the national malaise caused by the uncertain fortunes of the Napoleonic wars. By 1828 a series of decisions had limited the definition of the offense and imposed a greater burden of proof on the prosecution, but was offset by a new version of the statute enacted as part of the reform of the criminal law by Sir Robert Peel, prescribing that penetration alone (without emission of seed) sufficed to establish the crime. The death penalty for buggery (= anal intercourse) was not formally abolished until 1861 in England and Wales.

The reception of the common law in the newly independent United States meant that British precedent could be followed by American courts in their interpretation of existinglaws, but did not bind them. Hence the individual states came to have their own definitions of the crime and penalties for it. Some ratified a British decision of 18 17 that removed oral-genital sexuality from the definition of buggery, but others rejected it.

Then in 1885, in response to a wave of sensationalism in the press concerning the prostitution of teen-aged girls, Parliament adopted the Criminal Law Amendment Act. This contained an amendment devised by Henry Labouchere that prescribed a penalty of two years for "gross indecency" between male persons. Oscar Wilde was punished under this act, and the notoriety of the case, and the general hostility to homosexuals, blocked legal reform for decades throughout the English-speaking world. Further, many American states enacted their own versions of the amendment that made homosexual acts between males, and sometimes between females, criminal in a loosely defined manner, although the courts could later give more precision to the statute. By and large, courts in the common law tradition did not go beyond holding that "any penetration, however slight" was "sufficient to constitute the offense." This differed from the ruling of German courts that any "beischlafsihnliche Handlung" (act similar to coitus, such as full contact between two male bodies) was criminal under Paragraph 175 of the Penal Code of the German Empire.

In 1957, however, the Wolfenden Report urged decriminalization, whichwas accomplished, for England and Wales, ten years later, although the age of consent was set at 21, far above the one prescribed by tradition for heterosexual intercourse. In Scotland, Northern Ireland, Canada, and New Zealand legal reform occurred subsequently. The United States and Australia are a legal checkerboard, with some states reformed and others retaining the archaic legislation.
See also Canon Law; Capital Crime, Homosexuality as; Law: United States; Sixteenth-Century Legislation.

H. Montgomery Hyde, The Love That Dared hot Speak Its Name, Boston: Little, Brown, 1970.
William A. Percy

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