The state of the “common gaols” in the future Canada did not escape notice. In one petition signed by a number of judges – including Alexander Wood – the Toronto prison was causing prisoners “to suffer more than the laws sanction or humanity approve.”
At the same time, there’d been a movement afoot for some years 60 in Britain and the United States, toward changing the function of the prison. The goal of the “gaol,” they said, was not simply to punish — it was to make sure that when a convict was released, they were ready to rejoin society.
This was done by getting convicts used to manual labour and routine, giving them an education, and putting inmates in the care of priests and ministers. This new kind of prison had a new name – “penitentiary,” from “penitence.” The religious overtones were quite intentional. Prisoners were seen as prodigal sons who would one day return to the fold of religion and society.
The Provincial Penitentiary at Kingston opened its doors in 1837. Not surprisingly, the number of convictions increased almost immediately. Compassionate juries were more willing to return “guilty” verdicts and judges more ready to sentence if the criminal was going to be reformed rather than killed or sent to a dungeon.
Life in the King Pen
The Penitentiary was definitely an improvement on the “common gaols.” Inmates got simple meals, their cells were much cleaner, and the illiterate were taught to read and write there. Women and children were put in the penitentiary, too, though the women were watched over by a matron, and not just the male guards.
On the other hand, if the Provincial Penitentiary was imagined as a humane alternative by the public, no one told that to its first warden, Henry Smith. Smith’s treatment of the convicts – especially his brutal whippings of children as young as ten for such crimes as “smiling” and “laughing” – caused a colony-wide scandal, a provincial enquiry, and finally resulted in the firing of the warden.
It was into Warden Smith’s delicate care that the penitentiary’s first “sodomites” were delivered.
Samuel Moore and Patrick Kelly are remarkable for several reasons. Aside from being Kingston’s first “sodomites,” they are the first men I can say almost for certain were convicted and sentenced for gay sex between consenting adults, though there may have been others I haven’t been able to find.
They are also the first to make the papers. The Western Herald of June 16, 1842, is much more concerned with libel suit against one of its reporters, but mentions in passing a few other cases before the courts, including “Samuel Moore and Patrick Kelly, [convicted of] Sodomy, to be executed on the 15th day of July next.”
Some records still survive in the Ontario provincial archives of this trial. Moore and Kelly had separate trials, though on the same day and they shared one witness. The court was too proper to name their crime, simply entering it in the sessions books as “Felony.”
The men pleaded not guilty, but there were witnesses. A John Cooper was a witness to both cases, and was thus likely the witness who caught them — it was near-impossible to convict for “sodomy” between consenting adults unless there was a direct witness.
Kelly was unfortunate to have several men testify. In addition to Cooper, there was a Joseph Dwyer, a John Barker, and a man whose name is completely illegible in the clerk’s bad handwriting, but which looks like a Sergeant S. It therefore seems probable that Kelly had more of a reputation that Moore did.
Moore and Kelly were not executed. The letter staying their execution was written by the governor’s secretary and dated August 22, 1842:
”I have the honour by commission of the Governor General to acquaint you, that His Excellency … has been pleased to order that the sentence of death pronounced on Samuel Moore and Patrick Kelly, present prisoners in the jail at Sandwich [Windsor, Ontario], should be commuted into Imprisonment in the Provincial Penitentiary during the term of their respective natural lives…”
I’ve done my best to research these men. Fortunately, the wardens and chaplains at the penitentiary were excruciatingly careful record keepers, and included a great deal of information in their annual reports to the government, so I can give these men more than just names.
I feel it’s important to raise these men up from out of the abyss of history, to help dispel the silence gathered around our history. For that reason, I include the minor and seemingly pointless details, like the physical descriptions. In some cases, it’s all we have.
Samuel Moore was convicted at what’s now Windsor. He arrived at Kingston on October 8, 1842, facing a life sentence. The governor later shortened his sentence, and he was released on August 2, 1849.
Upon release, the penitentiary usually gave personal data on its prisoners. In the 1840s, this data was mostly about physical appearance. Thus we know that Moore was 39 years old, that he had black hair, a dark complexion, hazel eyes, and stood at 5’9”.
Patrick Kelly shared Moore’s conviction, his verdict, and the change of verdict. They arrive together, but Kelly was pardoned four years later than Moore, in 1853 — due likely to the larger number of witnesses at his trial. He was 27 at the time of his conviction. By the time of his release, the Kingston’s warden was giving sociological statistics rather than physical descriptions – thus we know that Kelly was Irish and working class, a labourer.
We also know that Kelly was one of the prisoners who complained of mistreatment at Kingston. According to the prison inspection of 1849:
“Convict Patrick Kelly, a life-prisoner for sodomy, is called to state, that he fell from a scaffold in December, 1846, on a Thursday morning ; that the Surgeon did not see the injury until the following Monday, when he was sent to the hospital from his cell ; that he was a fortnight in his cell before it was discovered that his thigh was broken ; that a splint was then put on it, and remained on six weeks, and that he is lame still. He admits, however, that he ‘blames his not lying as the Doctor directed him, for the shortness of his leg now. The Doctor threatened to tie the witness down, to make him lie in a proper direction.’ Hospital-keeper Jones proved, that every patient in the establishment has been regularly examined by the Surgeon daily, and Kelly could not have been three days unexamined ; that Kelly’s accident did not occur when he says it did, but that he came into the Hospital on the 26th September, 1845 ; that lotions were applied until 9th October, when a splint was applied for fractured neck of the femur ; and that the case was discharged from Hospital on the 7th of January, 1846.”
The inspectors did not believe him, pointing out a difference between his version and official records. Kelly’s leg never healed properly, and from the sound of it he walked with a limp the rest of his life.
Moore and Kelly were most likely lovers – though I have no way of knowing whether they were caught in a casual one-time encounter, or whether this was a long-term relationship.
Cortland Travers, frequently named “Travise” by mistake in court records, is the only “sodomite” to arrive alone. The records of his trial at Ontario’s provincial archives strongly suggest that his was not a victimless crime. Charges were brought against him by a Susan Ann Stull, a Maria Stull, and a Dr. Robert McCulloch. I strongly suspect that a fourth person named later in the records, was the victim — Charles Kennedy. If so, he was underage, or else he would’ve been named among those bringing charges. An “Elijah Travise” was a witness for the defence.
Of course, our details are scant, and the records are vague. It’s possible that Travers was arrested for something consensual, and that his partner got away before his arrest, or escaped prison. Travers was only seventeen at the time of his conviction, and it’s also possible that Kennedy was a consenting partner who was not much younger, but turned his lover in as a “rapist” to escape conviction after they were caught in the act.
(From the GLBT histories of countries with more complete records, we know such things happened quite regularly.)
Cortland Travers was sentenced at Hamilton in 1843. He only got seven years. He arrived at about the same time as Grace Marks, the murder convict who is at the centre of Margaret Atwood’s Alias Grace.
Travers was originally sentenced to death, but received a handwritten letter virtually identical to the one Moore and Kelly got. The governor’s secretary was not even sure of the boy’s name – he writes, “Cortland Travers or Travise.”
We know that Travers was Irish. The warden’s report describes him as having a fair complexion, brown hair, grey eyes, and standing at 5’7”. He was not pardoned – instead he served his full 7 years, being released at the age of 24 on November 30, 1850.
George Hogg and George Smith come in together in 1856, lovers again — though whether casual or partners again I don’t know. They were convicted at Kingston. Both were working-class, common labourers, both English immigrants, both members of the Church of England. Hogg was much older than his partner – at 60, he was twice Smith’s age.
These last two spent the celebration of Confederation in prison. Then in 1871, a very elderly Hogg died of tuberculosis in the former Provincial Penitentiary – now renamed the Kingston Penitentiary. Hogg has the dubious distinction of being the first “sodomite” to die in there – by all accounts a horrible place for an elderly man to spend his last days.
His lover was pardoned that same year. I like to think that this was an act of compassion on the part of the government, though this is probably much too optimistic.
After Hogg and Smith arrive, and right up to Confederation, the records become confusing. The second warden — Donald Aeneas MacDonnell — was in poor health, and his record-keeping suffered.
At one point in the same year, it looks like there are two “sodomites” (Hogg and Smith) in the penitentiary. At another, it looks two have been added anonymously; and later still, it looks like there an extra four. After that, there is a gap in the records that lasts years. At some point, a same-sex rapist is added, but his name is never mentioned.
After Confederation, the convictions began to steadily increase, with a sudden increase after 1890. By that time, the death penalty had been rescinded — making judges much more willing to convict. We’ll turn to the end of the death penalty for “sodomy” in our next instalment.
Before I end this section, I’d like to take off the historian’s hat for a moment. Writing this section became an obsession. I was startled by the information I dug up – information no real historian has ever seemed interested in.
Cortland Travers was a teenager, and one of the dozens of poor Irish immigrants who landed in prison that year – they are by far the largest single ethnic group to be sentenced for any crime in 1842. He spent the best years of his youth in jail. George Hogg was an elderly man forced to spend his declining years within Kingston’s grey walls, and died of the “prisoner’s disease.” Samuel Moore and Patrick Kelly were delivered to the tender care of a warden known to be a brutal psychopath, for a “sin” of desire and a “crime” with no victim.
Fury is useless. The men involved – victims and victimizers – are long dead. The laws have been changed. The prison system has been reformed. There is nowhere to spend fury practically here, no useful channel down which I could direct outrage.
Yet, still, I feel outrage. Maybe I have to, because no one felt outrage at the time.
Sources: My sources on these men’s lives are primarily the wardens’ reports of Henry Smith and Donald Aeneus MacDonell, collected in the Appendices to the Journals of the Province of Canada from 1837 to 1871, though the other prison reports collected along with the wardens’ reports sometimes proved useful. I was able to order the letters commuting the death sentences of these five men from the Canadian Archives, and found the newspaper reference to Kelly’s and Moore’s trial on PaperofRecord.com. I have since updated this section with information from the court minutebooks of three of the trials — Moore’s, Kelly’s, and Travers’ — which can be found on microfilm at Ontario’s provincial archives as reels MS 530 (3) and MS 530 (4).