In all these articles, I still haven’t discussed in any real depth the laws that sent all those homosexuals and bisexuals to the stake or gallows, or into exile. Before we go any further, we’re going to have to talk about those laws.
In 1763, France officially gave up its North American colony to the British. Britain renamed it the Province of Quebec. For a legal system, it settled in 1774 on a hybrid of British and French law – it took Paris’s law for its civil cases (lawsuits, property, marriage, etc.), but used the English law for its criminal ones (murder, rape, theft – and “sodomy”). It also used English-style courts.
But before we can look at the courts, we have to look at the laws and their terminology.
Buggery and Sodomy
The two words used almost interchangeably in English and French for cases dealing with homosexuality were “buggery” (bougrerie in French) and “sodomy” (sodomie). Both these words have a curious history. They also had fairly different meanings in in the two different legal systems, which we’ll get to after.
“Sodomy” takes its name from the city of Sodom, destroyed in Genesis in the Bible for its “wickedness.” The word eventually came to mean “homosexuality” in English law, but the story had a long and complex history of changing interpretations. The earliest seems to have been that God destroyed Sodom because the city was cruel to foreigners – that’s the interpretation in the Bible at any rate, and the one suggested by Christ in Matthew Chapter 19, verses 13 and 14.
In French law, it came to mean “any kind of sex that cannot result in children” – and this, of course, was its meaning in New France as well.
“Buggery” has an even more chequered history. As “bougre” it had meant Bulgarian – as in the Bulgarian heresy, better known these days as the religion of the Albigensians or Cathars. The Albigensian faith was a form of Christianity very different from Catholicism, and which became extremely powerful in the south of France.
In 1208, the Medieval Church launched a campaign to exterminate these “heretics” – and a part of that campaign was homophobic propaganda. It seems the Albigensians had very different sexual values than the Catholics. Indeed, they thought non-reproductive sex was better than reproductive sex, because it didn’t drag another soul out of heaven to risk eternal damnation in this life. Catholic propaganda had it that this view of things led the “bougres” to commit all kinds of “immoral” sex acts, especially homosexuality.
The effect this propaganda had on the psychology of Europe was astonishing. The church not only fanned the flames of bigotry against the “heretics,” but also against homosexuals and bisexuals – the first executions for homosexuality in Europe begin later that same century. It also linked homosexuality and heresy together in the public mind. This linkage has had a surprising lifespan. When the Protestants broke away, they tarred the Catholics with accusations of homosexuality, as an indication that the Catholics were heretics. Rather than reject this old bit of Catholic propaganda, they turned it on its creators.
One can still hear it — eight centuries later — in the arguments of the religious right today.
French law was a complex patchwork in the Middle Ages. Each area had its own local laws, called “customs,” which were sometimes collected in books. No one had exactly passed these laws – they were just the way things had always been done in that region. These “customs” changed completely from one territory to the next.
While the civil laws of New France were based on the Custom of Paris, the customary criminal laws that would be eventually applied to the colony were those collected in a book called the Établissement de Saint Louis. This book contained the declaration that “bougres” and “heretics” should be put to death by fire.
The word “bougres” had almost certainly meant “Albigensians” before, but by the end of the 13th century, the Albigensians were gone, and no one was sure anymore if the law now applied to heretics or people guilty of sexual “immorality.” Since “heretic” was already in the code, sexual “immorality” was a much more common interpretation. Still, this view remained controversial. Many (including the philosopher Voltaire) continued to insist that the word “bougre” just meant “heretic.”
A man named Philp de Remi, lord of Beaumanoir collected the customs for the area of Beauvais. He came up with a creative solution in his book. The way he worded his sodomy law became very influential on other customs, and was soon the standard interpretation:
“He who errs against faith that by his lack of belief he will not come to see the truth, or who does sodomy, he will be burned and forfeits all his possessions [that is, the government takes these away from his family so they don’t inherit]…” (translation mine)
In other words, “sodomites” were automatically heretics anyway, since only the worst of heretics would commit “sodomy.” This nicely sidestepped the thorny legal issue. It also drew the attention of Beaumanoir’s boss King Philip IV, who saw in it the solution to one of his most serious problems. Philip was especially interested in the part about forfeiting possessions.
The Knights Templar had started off as an organization of body guards who escorted pilgrims safely to holy sites in Jerusalem. They received a lot of donations, and somewhere along the line, they found they had a flair for banking. They had earned plenty of money, which made them a potential target. King Philip IV was always desperate for cash, and the Knights Templar had cash. Also, Philip was deeply in debt to them.
Philip had the confessions to “sodomy and witchcraft” extracted by torture. The burning of the Templars at the stake is believed to be the first mass-killing for “sodomy” in history. Since the law allowed the king to confiscate the convicted person’s property, Philip got everything the Knights Templar owned.
Meanwhile, “sodomy” was going through another change in French law – it was becoming a form of treason.
The kings of France were always looking for ways to tame the nobles, who were a threat to royal power and – oaths of allegiance to the crown aside – often went to war with Paris. To break the power of the nobles, the French kings needed to take the courts away from them. Lords acted as judges, except in cases of treason against the king.
To take that power for themselves, the kings of France used the most convoluted logic imaginable to define everything under the sun as “treason.” In the case of homosexuality, it was decided that since homosexuality was a form of heresy (according to Beaumanoir), and a heretic denied the existence of God, and God was the justification for the existence of kings — because God chose kings, after all — homosexuality was therefore treason because it attacked the justification for the king’s power.
That’s why Nicolas Daussy de Saint-Michel couldn’t be tried in an ordinary court, only by the Sovereign Council at Quebec. His sexuality technically made him a traitor, so he could only be tried by the King’s direct representatives in New France.
By the 1700s, France had laws and a system in place for punishing all “sodomites.” They had a prescribed death sentence, and rituals of execution by burning. There was just one problem left to them – what exactly was “sodomy”?
French law as yet no definition of this capital crime. Without a definition, judges were left to make their own decisions. In all the works I’ve read on the subject, male homosexuality and bestiality were the only things that merited burning. Female homosexuals were given a quicker death by hanging. I have never read of heterosexuals being executed for sodomy in France – it certainly may have happened, but if so, it must have been rare.
France finally got its legal definition for sodomy in 1757 – about five hundred years after the executions for sodomy had begun, and about a quarter-century before they’d end. According to legal expert Pierre-François Muyart de Vouglans:
”This crime [of sodomy], which takes its name from that abominable city which is mentioned in Sacred History, is committed by a man with a man or a woman with a woman. It is also committed by a man with his wife when they do not use the ordinary way of generation.
…one cannot punish it with penalties too harsh, and above all when it is committed by two persons of the same sex.
…This penalty, which has been adopted by our jurisprudence, applies equally to women as to men.” (translation by Louis Crompton)
Thus, sodomy in France was any kind of sex that can’t result in children, but is a crime that is much worse when homosexuality is involved.
This was the final form of France’s – and thus New France’s – sodomy laws when the colony fell into Britain’s hands. Britain’s criminal laws took over at that point.
Britain’s sodomy laws were very different from France’s, and these differences are crucial in the way the law was interpreted and applied. .
Sources: Numerous sources have helped, including Didier Godard’s Le Goût de Monsieur and Louis Crompton’s Homosexuality and Civilization, as well as John Boswell’s Christianity, Social Tolerance, and Homosexuality and Byrne Fone’s Homophobia: A History. For the Beaumanoir quote, I went right to a modern imprint of the Coûtumes de Beausvais. A marvellous book entitled Le Droit Civil Suivant l’Ordre Établi par les Codes, by Gonzalve Doutre will tell a person everything they wanted to know about the history of New France’s laws. Sadly, this book is out of print, but can be found for free in full-text on Early Canadiana Online.