In 1774, a compromise was hammered out – the laws of the new Province of Quebec would be a mixture of the British and the French systems. For minor crimes, contracts, and lawsuits French law would be used. But for serious cases, the new province would use British law, and Sodomy was considered a serious crime. What was the result?
To understand that, we’re going to have to go back half a millennium.
In 1533, as Henry VIII was hard at work destroying the Catholic Church’s power in England, he turned to the problem of religious law. In order to break the church, he would have to take away its power to enforce laws of morality, and replace them with secular laws.
In 1533, he produced his sodomy law, because “there is not yet sufficient and condign punishment appointed and limited by the due course of the Laws of the Realm for the detestable and abominable Vice of Buggery committed with mankind or beast”:
”..the offenders being hereof convicted by verdict confession or outlawry shall suffer such pains of death and losses and penalties of their good chattels debts lands tenements and hereditaments as felons do according to the Common Laws of this Realm. And that no person offending in any such offence shall be admitted to his Clergy…”
The bit about “chattels” and “hereditaments” meant that English law, like French law, said the sodomite’s possessions would be confiscated by the government, rather than going to their next of kin. The bit about “Clergy” meant that even priests and monks could be executed under this law (they could not be executed for murder, implying that sodomy was worse).
These two last details came in handy when Henry VIII decided to kill the monks and nuns, and take their monastery lands – the same trick Philip IV had pulled in France against the Knights Templar 200 years before. Likely Henry VIII had this in mind when he was writing the law. The claims that the monks were “sodomites” (thanks to information his spies had gathered) formed the basis of this propaganda.
There was only one problem — like French law, English law neglected to explain what “buggery” was. King Henry’s law never actually defined it. Later versions also didn’t bother. In the early 1840s, the law as rewritten under Queen Victoria and appearing in the Consolidated Statutes of Canada was no less vague:
”Every person guilty of the abominable crime of Buggery, committed with mankind or with animal, shall suffer death as a felon.”
When the law was again re-written under Victoria to eliminate the death penalty altogether in Canada in 1869, it still didn’t explain:
”Whosoever is convicted of the abominable crime of buggery committed either with mankind or with any animal, shall be liable to be imprisoned in the Penitentiary for life, or for any term not less than two years.”
Fortunately for judges, most of the major English legal experts were happy to explain “sodomy.”
Coke, Blackstone, and Burn
It’s been suggested that when Henry made his law, it applied to things other than homosexuality and bestiality. Historian Louis Crompton suggested that the word “sodomy” had once included masturbation, or to certain kinds of male/female sex. If so, it had lost that meaning completely in England within 100 years.
Sir Edward Coke, the greatest legal expert of his day, had this to say about “Buggery, or Sodomy” in the third part of his Institutes of the Laws of England, published 1644:
”Buggery is a detestable, and abominable sin, amongst Christians not to be named, committed by carnal knowledge against the ordinance of the Creator, and order of nature, by mankind with mankind, or with brute beast, or by womankind with brute beast.”
Coke seems to think his audience won’t buy the idea of a female “sodomite” – the concept was just that absurd. He proceeds to try to convince them that a woman can be a “sodomite” if (and only if) she has sex with an animal. He further claims that the act was worded to include women because “a great lady had committed buggery with a Baboon and conceived by it, &c.” History does not record the name of the “great lady,” nor will we ever know what hides behind the “etcetera” at the end of that sentence.
Probably the most influential of all legal experts in England – Sir William Blackstone – refused to define it, or even mention either of the two words used, in his Commentaries of the Laws of England in 1769. All he tells us is that it is “the infamous crime against nature, committed with man or beast.”
Blackstone did add something new to the mix: he said that a false accusation of this “offence of so dark a nature … deserves a punishment inferior only to that of the crime itself,” because he realized that being accused of “sodomy” could ruin a person’s life. The Canadian colonial government took heed of this view, and by the early 1840s, blackmailing someone with false accusations of homosexuality was punishable by two years to life in prison.
The other major commentator was Richard Burn, whose Burn’s New Law Dictionary was an important update of Blackstone. It was published in 1792. His definition copies Coke’s to the letter, except that it adds that “buggery” was “said to have been brought to England out of Italy by the Lombards.”
These are the three authors an early Canadian judge would’ve turned to if there was any doubt what “buggery” and “sodomy” were. As it turned out that there was some confusion, at least in French Canada.
Jacques Crémazie was the less-famous lawyer brother of the great poet Octave Crémazie. He wrote the first commentary in French on English criminal law for a French Canadian audience. However, this commentary left something to be desired. His section on sodomy:
”[Sodomy] consists in the carnal knowledge against the order of nature which takes place between two men, or between a man and a woman, or between a man and a woman and an animal. In this last case, this crime is called Bestiality.”
In addition to the obvious problem that he’s defined “Bestiality” only as a trisexual threesome (“A man and a woman and an animal”), Crémazie is the only commentator on English law before the late 19th century to throw heterosex into the equation. This isn’t surprising, because the word “sodomie” included this in French.
In Crémazie’s defence, I don’t think he’s the only francophone to have made the mistake. There’s a curious case on the prison records of Quebec City, involving a man named Abraham Turgeon and a woman named Gabrielle Pouliot.
We have very little information about the case. I haven’t been able to find out anything about our Gabrielle, but our Abraham was a well-known lawyer, an advocate for struggling farmers, a possible embezzler, and later a minor politician running with the radical pro-democracy Patriote party.
Abraham and Gabrielle come in together, and are charged with sodomy. The order for their arrest was given by a pillar-of-the-community named Louis Ruel (another lawyer, electoral officer, and founding member of a benevolent society).
I’ve been over penitentiary records and many other legal documents for most of the 19th century now, and Gabrielle’s name is the only woman on the list so far for “sodomy.” This case is also the only case I’ve seen dismissed because of “habeus corpus” – the legal principle that you can’t hold someone in prison for no reason. It’s not the same as being found “not guilty” – this never went to trial.
Why not? Well, I suspect that what happened when Abraham and Gabrielle stood before a judge at the pre-trial hearing, the judge simply pointed out that under English criminal law, a man and a woman could not commit “sodomy” with one another. If necessary, he could have always turned to his copies of Coke, Blackstone, or Burns.
The Changing Laws
Before we leave this subject, I think it’s important to point out that the Quebec Act had one effect that you probably never heard about in high school history – it effectively legalized sex between women. Not until the laws surrounding “sodomy” and “gross indecency” were changed later on would lesbian sex become illegal again.
It was just one of the changes made by the fusing legal systems. In theory those changes should have been positive for “sodomites” – the English system had the principle of “innocent until proven guilty” — in France it was “guilty until proven innocent.” The English system also allowed lawyers, and used a jury system. For those guilty of breaking an unjust law, the English system was padded with layers that protected the accused, which could keep them from going to jail. The French system was not nearly so kind.
However, when it came to “sodomy,” the French had almost never applied their law in their North American colony. The English had applied it in their colonies — and done so often.
Still, as we’ll see in our next section — an overview of attitudes to homosexuality in British North America — homosexuals had another protection under the British regime: the total unwillingness of British colonists to admit homosexuality even existed in the territory that would one day become Canada.
Sources: As usual, Louis Crompton’s Homosexuality and Civilization and Byrne Fone’s Homophobia: A History were helpful, and John Boswell’s Christianity, Social Tolerance, and Homosexuality was as well. For laws, I often consulted the originals or (more often) microfiched or full-text digital copies of the original legal codes in question. Canadian Laws are generally found in the Statutes of Canada for the year they were passed, or Consolidated Statutes of Canada after that. The prison records for Abraham Turgeon and Gabrielle Pouliot can be found at Quebec’s library and archives site, PISTARD. Turgeon and Ruel are recurring characters in the various Journals of the Assembly of Upper Canada and later Journals of the Assembly of the Province of Canada. Ruel was a witness many years after this arrest in Turgeon’s embezzlement hearing.