The following is an excerpt from Sir William Blackstone, Commentaries on the Laws of England, Book the Fourth, XV Chapter, p. 215.
This is neither an endorsement nor a condemnation of his views or of English Common Law itself.
“IV. What has been here observed, especially with regard to the manner of proof, which ought to be more clear in proportion as the crime is the more detestable, may be applied to another offence of a still deeper malignity,—the infamous crime against nature, committed either with man or beast; a crime which ought to be strictly and impartially proved, and then as strictly and impartially punished. But it is an offence of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out; for if false, it deserves a punishment inferior only to that of the crime itself.
“I will not act so disagreeable a part, to my readers as well as myself, as to dwell any longer upon a subject the very mention of which is a disgrace to human nature. It will be more eligible to imitate, in this respect, the delicacy of our English law, which treats it in its very indictments as a crime not fit to be named: ‘peccatum illud horribile, inter Christianos non nominandum.’ (k) A taciturnity observed likewise by the edict of Constantius and Constans :(l) ‘ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura gladio ultore, ut exquisitis pænis subdantur infames, qui sunt, vel qui futuri sunt rei.’ Which leads me to add a word concerning its punishment.
“This the voice of nature and of reason and the express law of God(m) determined to be capital. Of which we have a signal instance long before the Jewish dispensation by the destruction of two cities by fire from heaven; so that this is a universal, not merely a provincial, precept. And our antient law in some degree imitated this punishment, by commanding such miscreants to be burned to death,(n) though Fleta(o) says they should be buried alive; either of which punishments was indifferently used for this crime among the antient Goths.(p) But now the general punishment of all felonies is the same, namely, by hanging; and this offence (being in the times of popery only subject to ecclesiastical censures) was made felony without benefit of clergy by statute 25 Hen. VIII. c. 6, revived and confirmed by 5 Eliz c. 17. And the rule of law herein is, that if both are arrived at years of discretion, agentes et consentientes pari pæna plectantur.(q)”