Homosexuality was rarely talked about in early Canada, and when it was, it was described a foreign vice. If there had been a stereotype of the English homosexual, it would probably be a stereotype imported from the metropolis – the decadent aristocrat, raised in “effeminate” wealth and luxury. Indeed, when the first homosexual character appears in a Canadian novel, this is exactly what he looks like (a subject I’ll come to later). George Herchmer Markland matched the stereotype perfectly.
Canadian judges, however – who saw the real “sodomites” in court – may have had a different stereotype. Whenever a profession is attached to the name of a sodomy convict in the 19th century, it is almost always “labourer.” These were the men who did the rough, physical work, from construction to the carrying of heavy loads to mining. Once the industrial revolution reached Canada, the labourers are joined by factory workers. Often though, no profession is listed — these were most likely drifters. The typical “sodomite” then – from the court’s point of view – was working-class.
The Early Days – 1763 to 1840
The few works researching homosexuality in early Canada make the happy declaration that there weren’t many “sodomy” cases, and that no one has ever found a “sodomy” convict that got the death penalty. This encouraging statement – while true – deserves some fine print, as I discovered from my own researches.
Firstly, these records contain rather large gaps. Some have been burnt or water-damaged with the years. Others are gone altogether. Often vital information (like the verdict and the sentence) was never recorded. Sometimes we have information about a case in one source, and not in another. For example, I have been able to find Thomas Clotworthy’s subpoena, but not his statement of indictment — which would provide greater detail.
The surviving early 19th-century records are scattered to every corner of Canada – often in the archives of whatever city the courthouse was in, making it hard to track them down. I wouldn’t even know where to look for Newfoundland’s oldest records, if these still exist. Its first trials were conducted by sea captains.
To make matters worse, most of the historians who’ve looked into this before me didn’t seem to have done much legwork. I kept reading that Montreal’s first sodomy case in 150 years was the Clotworthy case in 1840. Yet, when I went diving for records, I discovered another one, in 1813.
So while we’ve never found a case where a sodomite was sent to hang, that may just have more to do with poor record-keeping – or poor record-reading – than anything else.
Sentencing and Punishment in Early Canada
Justice in the colony’s early days was cruel. The colonial government lacked both the resources and technology to build modern-style prisons. Until the 1830s, few even believed such prisons were necessary.
There were around 200 crimes on the books in colonial Canada that earned a convict the death penalty. This penalty could be commuted by a judge, but some crimes (like “sodomy”) required the intervention of the colonies’ governors to save the convict from their date with the gallows.
The governors, however, were quite merciful. They very often commuted death sentences, even for “sodomites.” They also frequently wrote pardons. One book on early crime in Canada, Terror to Evildoers, states that between 1790 and 1835, Upper Canada only used the death penalty 138 times for all crimes combined. This was a tiny number by the standards of the age.
For this reason, even though “sodomy” carried a mandatory death penalty, the few convicted “sodomites” I’ve been able to trace turn up at prison instead, and frequently were allowed to leave before their time is up.
If a sentence was commuted, the convict would be either sent to prison, or to “transport.” “Transport” meant that the person would serve their sentence as a temporary slave, first in the future United States and then (after the American War for Independence) working for the colonists of Australia.
Prisons were awful. “Common gaols,” as they were called, were stone dungeons where prisoners were locked up in leg chains. Prisoners in “common gaols” had to buy their own food, so the poorer prisoners ones unless a member of their family supported them. Disease was rampant, and convicts frequently died of tuberculosis. In the unclean cells, the air was toxic. On the other hand, wealthy prisoners could buy their way out of their leg irons. Once past this defence, “common gaols” were notoriously easy to break out of, and the prisoner could make a run for the American border, or escape by ship.
“Sodomites” before 1841
Gathering records for this era has been extremely difficult. I doubt I’ve even uncovered a quarter of the country’s early trials for “sodomy.”
Worse, it wasn’t until the penitentiary at Kingston was built and the first really detailed criminal statistics appear. Only then do we have a good idea of what crime these men were convicted. “Sodomy” in the early 1800s could mean homosexuality, same-sex rape, and male/male paedophilia. “Buggery” included all these things, plus bestiality.
Of the five names of “sodomy” convicts and possible convicts I’ve found before 1841, one – 17-year-old printer Thomas Clotworthy – was went to trial for what we’d call paedophilia with an 11-year-old boy, and another – Jean Baptiste Coulombe – was on trial for same-sex rape. Both these men would likely have been charged in our time as well.
Yet, both these men’s trials are relevant to this study because they reveal how deep the homophobia ran. The real issue for Canadian courts before 1841 was not the lack of consent involved in these cases — that simply meant there was one accused rather that two — but the homosexuality involved. The indictment papers of Jean Baptiste Coulombe demonstrate this skewed perspective. Note how it’s the homosexuality, not the lack of consent, which really seems to bother the court:
The Jurors for our Lord the King upon their Oaths, present that Jean Baptiste Coulombe, late of the Parish of St. Mary, commonly called the Parish of Montreal …, labourer, not having the fear of God before his eyes, nor the order of nature, but being moved and seduced by diabolical instigation on the Eighteenth of June  … at the Parish of La Prairie de Magdalen, in the county of Huntingdon … with a certain Cour. then and there being unlawfully, wickedly, and diabolically and against the order of nature did make an attempt carnally to know the said Cour. with intent that most horrid, detestable, and abominable Crime (among Christians not to be named) called Buggery…
The name of the other man is illegible. It looks like it begins “Cour,” and is probably the Pierre Courtois who was a witness at the trial. The notation of the verdict is bizarre and confusing on both copies of the indictment paper, though it went to trial and it looks like Coulombe was found not guilty.
(A table entitled “Criminal Statistics for the District of Montreal” in The British American Journal of Medical and Physical Science for November 1846 confirms that there was not one conviction for “unnatural crimes” between 1829 and 1843 — which means that Clotworthy was found “not guilty.” Indeed, I haven’t yet found one conviction for “sodomy” prior to 1841.)
We know little about Jean Baptiste Coulombe, but about other “sodomites,” I’ve been able to find even less. Were François Marois, John Langs, and Moses Winters homosexuals, paedophiles who abused boys, or rapists who attacked men? The records I’ve found don’t specify.
In the case of Langs (from the Hamilton area, tried 1827) and Winters (from the Toronto region, tried 1831), the records I found don’t even tell us if they were found guilty or innocent, if they lived or died. It is probably a testament to the cheapness of human life in this era that we do know exactly how much their trials cost, however – Langs’ fight for his life appears on the balance books at £1, 13 shillings, and 6 pence.
I was able to find out a bit more about Marois, though not exactly what he was charged with. François Marois was the only person in the 19th century to be sent to Quebec City’s “common gaol” for his “sodomy” sentence. The prison register records that he was a Canadian-born 40-year-old, 5’8” in height, with a dark complexion.
Whatever kind of sodomy he was convicted of, he couldn’t have been considered a real threat to society – he only got one year’s imprisonment, plus some time in the pillory. Even this was apparently too much for Marois, who broke out of prison a month an a half after he arrived on August 14, 1821. As far as I can tell, he was never caught.
He was not the only one to escape the arm of the law. In a government survey of the justice system in 1842, a lawyer named Étienne Martel complained that escapes were common:
”There have been, during the last three or four years, in the County of Bonaventure [on the Gaspé peninsula], two or three cases of rape, one of sodomy, and one of bestiality. In one of these cases, the accused was imprisoned, and sometime afterwards released. All escaped prosecution.”
The unwillingness to prosecute is intriguing — and it’s not the only reference to this strange leniency. In one paper dated January 5, 1863, there is a small blurb:
“SERVED HIM RIGHT — John Gilmour, a private soldier in the 62nd regiment, stationed at Kingston, has received fifty lashes, and when his back is healed will be drummed out of the regiment for having committed an unnatural offence.”
Nowhere is the possibility of arresting and charging Gilmour mentioned.
The Quebec jail — though it only contained one sodomy convict — contained a fairly large number awaiting trial. Duncan McKinley, a Scottish immigrant, was charged with same-sex rape in 1815, and found “not guilty.” So was John Rose, a man from the West Indies, in 1843. The specifics of Samuel Nash’s and William Smith’s alleged trials aren’t listed beyond the charge, but again, they were freed.
Interestingly, not one of the early trials I’ve been able to trace brought a couple before the judge. It may be there are other trials I haven’t found yet, but it still suggests these trials were rare if they happened at all. Most likely it means we’re not dealing with consensual homosexuality between adults here — though it’s always possible half the couple escaped without being caught, or broke out of prison before the trial. It is also possible that some of the victims in these cases claimed to have been raped to protect themselves (though not their partners) from prosecution.
Did judges – in spite of the official rhetoric that lumped gay sex in with same-sex rape, paedophilia, and bestiality – actually understand the difference between victimless crime and abuse? Did local authorities prefer to handle consensual gay sex quietly, the way the Family Compact did with its own members and friends?
Or is simply that – without a victim to complain – officials rarely heard about homosexuality? Constables in these days were not “pro-active” — they waited until a complaint was made before they acted. Consensual “sodomy” was also very difficult to prove, as only one homosexual act was illegal at that point. Try proving that a specific sex act took place when your two best witnesses are also on trial, and therefore likely to lie. If the lie were well-concocted, it would throw even eyewitness testimony in doubt.
Whatever the reason, as the Canadian system moved from the idea of punishing criminals to reforming them, “sodomites” start arriving in pairs rather than singles. When the Provincial Penitentiary was built at Kingston, its first two “sodomites” arrive as a couple.
But we’ll get to this in our next instalment.
Sources: Marois and other Quebec prisoners appears in the “grand écru” at the Province of Quebec’s genealogy website. Coulombe shows up in the Montreal archives, the King’s/Queen’s bench records (TL19,S1,SS38), which I’ve studied from 1796-1825. Clotworthy shows up in the subpoenas saved in another Montreal Archives collection (TL19,S1,SS62,D160), with additional details filled in by Montreal gay archives, les Archives gaies du Québec. Langs and Winters show up in the Journals of the Assembly of Upper Canada, available Early Canadiana Online. Details of the criminal justice system come from several sources, including Justice in Early Ontario, 1791-1840 by Charles K. Talbot and The Kingston Penitentiary: the first 150 years, 1835-1985by Dennis Curtis et al., and Terror to Evildoers: Prison and Punishment by Peter Oliver. Étienne Martel’s complaint can be found in the Appendices to the Journal of the Assembly of the Province of Canada, in Appendix G, for the year 1843. The source for the criminal statistics I have listed in the body of the text. I have stupidly neglected to keep the name of the newspaper that furnished the blurb on Gilmour, only the date. It would be somewhere among the Ontario newspapers on PaperOfRecord.com