Anyone attempting to explore the meanings that are produced and deployed by way of legal textual practices of buggery has to solve a riddle. 2 The riddle relates to a requirement that has had considerable durability in the Common Law. In order to speak of buggery within that legal tradition, the speaker had to proceed according to a command to remain silent. 3 This injunction to silence was neither demanded by the letter of the statute of Henry VIII that introduced the secular offence of buggery in the regnal year 1533-4, nor was it a requirement of the statute of Elizabeth I that in 1562 enacted the offence of buggery in perpetuity (see Smith 1991:45-53). It is referred to in the early seventeenth-century writings of the judge and eminent legal scholar, Sir Edward Coke. In The Third Part of the Institutes of the Laws of England (Coke 1628), 4 in Chapter 10, entitled ‘Of Buggery or Sodomy’, 5 Coke commented that if buggery is to appear in the law then it must be described by the words ‘not to be named amongst Christians’ (inter christianos non nominandum). The requirement that the indictment, the formal written accusation required in order to initiate formal legal proceedings, must contain this injunction to silence gives rise to a strange state of affairs in law. The legal formula by which buggery was to appear in the law (through the indictment) demanded that the wrongful act be named by way of a silence.
The injunction to silence would appear to pose particular problems for those who seek to resort to the term ‘buggery’ in law. As a general rule, legal practice requires that an indictment must clearly name the wrong. Compliance with the injunction that buggery is ‘not to be named’ threatens to make that naming impossible and thereby threatens to undermine the operation of law. The history of buggery in law does not demonstrate, however, the impossibility of deploying the term ‘buggery’ but rather shows that ‘buggery’ has been the primary term through which the male genital body in its genital relations with other male bodies has been most persistently and painstakingly represented in law.
This chapter is concerned with an analysis of the history of the practice of that silence in the production of this body in law. It also seeks to use the injunction to silence as a tool through which to develop an understanding of the idiosyncrasies of law, particularly those connected to the impoverished nature of the lexicon of the law. Focusing upon case reports, the writings of legal commentators and popular