Archive for the ‘British North America’ Category

Seen from the point of view of the “sodomites,” the Conquest of Quebec was a mixture of good and bad. On the positive side, the Quebec Act of 1774 effectively legalized lesbian sex – England did not define female homosexuality as “sodomy.” It also brought in the principle of “innocent until proven guilty,” and introduced the jury system.

However, the Conquest also meant that New France passed from the hands of a country that was gradually becoming kinder to sodomites to one that was beginning to become more brutal. France had hit the peak of its executions in the 1600s, and would legalize homosexuality in just a few decades, while Britain – after centuries of denying that homosexuality even existed on its shores – had begun the with-hunt in earnest in the 1690s. It would continue to get worse until the early 1800s.

A gambler would be tempted to bet that things would actually become much worse in the future Canada, because of the 40,000 refugees pouring over the border after the American War for Independence – refugees from what had once been the most violently homophobic portion of the English-speaking world, probably even of European civilization. Puritanism had weakened somewhat, but the Puritans’ extreme homophobia seemed to have put a deep stamp on the American psyche that kept anti-sodomy laws on the books into the 21st century.

Canadian Silences

In spite of this mix of very volatile threads, the French-Canadian tradition of tolerance and the Loyalist Tory tradition of not-fixing-what-wasn’t-broken seem to have encouraged to look the other way. Just as England had done until the 1690s, Canadians seemed eager to keep up the pretence that homosexuality just did not happen within their borders.

Thus, when a Halifax newspaper printed a story of a British lord attempting to rape another man, it seems to be under the impression that its readers didn’t know what homosexuality was. Thus, even lawyers were confused about what the term “sodomy” meant. Thus, “sodomy” trials were rarely talked about in the press.

Yet, homosexuality was mentioned in the books Canadians read – mostly in travelogues and missionary accounts. There, they learnt that men married men in China, that a (black) Ugandan king’s same-sex desires led him to massacre countless innocents, and that the First Nations living on the great plains at the heart of North America celebrated rituals that respectable Europeans would find disgusting.

Homosexuality and race became linked in the public mind, and homophobia fed the Europeans’ growing sense of racial superiority – a subject I’ll return to later. The linking of race and homosexuality distanced Canadians from the reality of homosexuality in Canada. It was something that happened elsewhere, among non-Europeans.

“Sodomites” in early Canada

This belief that homosexuality was a purely foreign vice seems to have acted as a kind of protection. While many records are missing or impossible to access, the number of “sodomy” or “buggery” trials seems to have been very few, and all the ones before 1841 that I can find details of involve bestiality, same-sex rape, or paedophilia – all lumped under the same category of “buggery” as homosexuality between consenting adults. Among these, we have Thomas Clotworthy in Montreal, caught in bed with an eleven-year-old, and Jean-Baptiste Coulombe (also in Montreal) accused of raping another man who was probably named Pierre Courtois. Neither of these trials seem to have resulted in a “guilty” verdict. Even when it came to actual or statutory rape, the courts seemed willing to give a fair trial, and kept to the innocent-until-proven-guilty rule.

Moreover, when men start appearing in prisons for sex between consenting adults, it seems that the judges were lenient, that governors were willing to commute death sentences.

(This wasn’t unique to homosexuality – Canadian judges applied the death penalty less often than judges in other countries, and governors were constantly commuting sentences for a variety of crimes.)

When the penitentiary was built at Kingston, it brought with it a new paradigm – that the law didn’t exist to punish criminals, but to reform them. With that in mind, judges became less reluctant to issues sentences for sex between men, and the first consensual couples start appearing in the records.

Virtually every person I’ve found who was sentenced in Canada for gay sex throughout the nineteenth century was working class. The first couple to show up in the records were a pair of common labourers – 39-year-old English immigrant Samuel Moore and 27-year-old Irish immigrant Patrick Kelly. It would be fifteen years before a second couple – George Smith and George Hogg – arrived at the penitentiary.

As for the wealthy and the powerful, they managed to escape the full force of the law. Wealthy Scottish merchant Alexander Wood accepted quiet exile from Canada in exchange for silence – and then managed to return to the country after only a short time and re-establish himself.

Wood had been accused of abusing his power to see some soldiers naked. Though this was well known, Canadian high society chose to look the other way. Wood bought a plot of land that became knowing as a regular cruising ground – Molly Wood’s Bush – and this region later formed the heart of Toronto’s Church and Wellesley area.

George Herchmer Markland – the rising star of the colony’s elite, the Family Compact – was less lucky. His encounters with soldiers and possible attempt to buy the sexual services of a law student destroyed his career. The scandal was covered up, but Markland was still removed from the centre of power and almost completely erased from colonial high society and history.

Another powerful individual, the second-highest-ranking British medical officer in the Empire James Miranda Barry, was not even suspected during his stay in Canada, in spite of his unusual appearance. Barry – who was quite likely either intersexed or transgendered – seems to have had some difficulty “passing,” but his position as a member of the elite of colonial military officers seems to have protected him from excessive questioning. He was mostly known for his reforms that greatly improved the lives of soldiers.

While male homosexuality did occasionally become noticed by the courts or the ruling classes, female homosexuality remained completely invisible during this period. In fact, it was so invisible that the highly-conservative feminist movement of the 19th century felt safe using Sappho as an icon of female empowerment in the field of literature, without any apparent fear that it might taint them by association to “Sapphic love.”

Progress and Backlash

Given the silence, the secrecy – the simple fact that homosexuality just wasn’t on anyone’s radar – it’s probably not too surprising that in 1869, the new country quietly abolished the death penalty for “sodomy” without a second thought or any real debate.

This was part of a wave of political reform that had led to Confederation, and had swept the death penalty from the books for almost every crime – a wave that had begun in the very progressive province of Nova Scotia. Halifax had abolished the death penalty for “sodomy” as early as 1848.

After Confederation, however, things started to get much uglier. This is the time of the rise of extreme-racist “social Darwinist” movements that used immigration laws, government institutions, and propaganda to enforce their xenophobia.

Not surprisingly, this period from 1867 to the First World War also marks the first real rise in major persecutions against homosexuals and bisexuals in Canada – the first police raids, the first “education” movements, the first newspaper moral crusades, and the first public discussions about what to do with the “problem” of homosexuality.

It was also a time when the British government provided the model for a new tool with which to persecute homosexual and bisexual men – the “gross indecency” law.

Before we turn to this law, we’re going to have to look at the changing understanding of what homosexuality was, what caused it, and how to deal with the “problem” of people who had sex with people of the same sex.


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By the time Dr. James Miranda Barry reached Canada in 1858, he was already a legend in medical and military circles.

Barry had a reputation for being a genius as a surgeon. He had performed the first successful Caesarean section by a British doctor — only the sixth known successful Caesarean by a European. He also understood the importance of sanitation long before European medicine realized how infection worked. In an age when bloodletting by leeches and freezing the patient were common cures, Barry was an apostle of scientific medicine. In an era that thought that bathing, fresh air, and fresh food were harmful to the sick, he prescribed these things. The mortality rate dropped instantly in any hospital he was in charge of.

He was also considered a man of high and progressive ideals – he fought tirelessly for the right to medical treatment for women, for blacks, and for the poor. When he was in charge of prison inspection in South Africa, he had infuriated white wardens by asking black prisoners directly about the conditions of their cells and their treatment at the hands of the prison keepers. He fought for a better life for the lepers in the Hemel en Aarde leper colony — a colony which he had helped to found.

In spite of his genius and his compassion, however, it was always difficult to find Barry a posting because he had such a complex personality. At the best of times, he was cold, aloof, and eccentric. He loved to cause a scandal, and told wild stories of his adventure. He barely escaped courts martial several times for his rudeness to superiors, and once for going absent without leave.

His appearance, too, people noted as odd. He was tiny and androgynous, and the Count Emmanuel de las Casas admitted he’d mistaken Barry for a child when he’d met him.

Before Barry had reached Canada, he’d mellowed somewhat. Sickness and old age had taken its toll, and he was now less likely now to fling insults in every direction. He was still considered an eccentric. He carried a small dog named Psyche wherever he went, and took a pet goat with him on voyages for fresh milk. He was a vegetarian long before a vegetarian diet was popular. Some attributed his shortness and his strange appearance to this diet.

Mostly, though, he was known during his stay in Canada for his sanitation reforms in military housing, which greatly improved the lives of soldiers here.

Barry’s Life

James Miranda Barry seemed to appear out of nowhere in 1809, when he applied to the prestigious medical school at the University of Edinburgh in Scotland. He arrived in the company of an Irish woman named Mary Anne Bulkley, whom he usually introduced as his aunt, but once told a friend was his mother. Bulkley was sister to a famous painter named James Barry, and James Miranda Barry seemed to have inherited his name.

Barry’s entrance into the university was eased by a number of very powerful protectors. One of these was Francisco Miranda – grandfather of South America’s democratic revolutions and first president of Venezuela. Another was the progressive lord David Steuart Erskine, Lord Buchan, who was a firm believer in modern ideas like equal education for women.

Barry earned a reputation as something of a prodigy – his age was uncertain, but he passed his exams and thesis either in his late teens or early twenties. He then studied medicine in London under the greatest surgeons of the age.

He joined the military, and was posted to South Africa, where he set about reforming the medical and prison systems. He made a lot of enemies in the process of trying to protect the poor and the marginalized from the unscrupulous who saw medicine only as an opportunity for profit, and were importing poisonous “patent medicines.”

Barry also had a lot of sway with the colony’s governor, whose daughter’s life he’d saved. Rumours persisted about the androgynous Barry’s sexuality, and his relationship with the governor – one of his enemies, Bishop Burnett, said that Barry “is, has been and if rumour speaks true, will remain single.”

In 1824, a placard was hung on a Cape Town bridge declaring that “Lord Charles [had been caught] buggering Dr. Barry.” Later, Barry was always seen in the presence of a black man whose name is unknown, and who was officially entered on records as his “servant” but who may have been his lover.

Barry was moved from military posting to military posting, almost always to tropical islands – Mauritius, St-Helena, Jamaica, the Windward and Leeward Islands in the Caribbean, and Corfu. In each of these places, he implemented his usual far-reaching and ahead-of-their-time social and medical reforms.

He finally arrived in Canada long enough to greatly improve the lives of soldiers. Here he advocated a much more healthy diet for them, kitchens to prepare fresh food, and separate quarters for the married soldiers.

Barry was quite ill when he reached Canada, and after years of living in the tropics the climate didn’t agree with him. Finally, his doctor had to report to military authorities that Barry was now too sick to do his job, and Barry was fired a few months before he qualified for a full pension. He returned to Britain and tried to get his job back, but was unsuccessful.

The doctor spent his last days in an apartment in London, where he was treated by a military staff surgeon named McKinnon. Barry died in 1865. He had no will, but every time he had been close to death, he’d left very careful instructions about the disposal of his body. He had requested that no examination of it be made, and that be buried in whatever clothes he’d died in.

Apparently, the servant who’d prepared him for burial – a woman named Sophia Bishop – didn’t heed these instructions. When she wasn’t paid extra for her services as an undertaker by the family that employed her, Bishop went to the agents in charge of Barry’s estate. She demanded to be paid out what little property Barry had had at death.

Desperate for money, Bishop made the agency call Dr. McKinnon, Barry’s last doctor. She threatened him with the revealing of Barry’s secret: Bishop claimed that Dr. Barry was a “perfect woman,” and further added there were stretch marks that proved that “she” had given birth,

When Bishop wasn’t paid, she disappeared. Three weeks after Barry had died, her version began appearing in the popular press. The declaration that one of the military’s highest-ranking doctors was actually a woman became a gossip press piece throughout the British Empire.

Pretty soon, there was no shortage of people who’d met Barry saying that “they knew it all along.” Probably not surprisingly, only people who’d barely known Barry claimed to have “known it all along.” His close friends generally said that they’d had no idea.

Pretty soon, two competing myths about Barry had been framed, and around them was built a series of half-truths and complete fabrications. The first myth was that Barry was a woman who’d fallen in love with a military man, and cross-dressed in pursuit of him. The second story was that Barry was an early feminist, taking the only possible route “she” could to a medical career.

The first myth led to a series of truly awful novels that claimed to be exposés – perhaps the worst of these is Olga Racster and Jessica Groves’ nauseating Dr. James Barry: Her Secret Story. In this piece of High Edwardian saccharine, Dr. Barry dies with “her” lover’s name on “her” lips – “John…this…must…be…death!”

As times changed, though, this myth gave way to the one that was less popular in the 19th century: that James Barry was a feminist who’d reinvented “herself” as male only to claim a man’s privileges. This is central to Canadian Kit Brennan’s version of the story in her play, A Tiger’s Heart.

Interest has renewed in Barry recently, and now there are an increasing number of Barry scholars, and Barry-inspired art. Interestingly, Barry’s secret – not his skills as a doctor and his work as a humanitarian – has cemented his place in history.

However, there is still one question that has never really been answered: What was Barry’s secret, anyway?

The Problem of Barry’s Secret

Ultimately, the first myth about Barry’s secret is that we know what that secret was.

Immediately after the scandal broke, there was confusion. Dr. McKinnon was contacted by the man in charge of issuing the death certificate, Registrar General G. Graham, asking what Barry’s sex was. Dr. McKinnon — who’d also known Barry years before — replied that he thought it was “none of his business,” but that personally he’d always believed Barry was a “hermaphrodite,” what we now call intersexed. Barry’s Canadian doctor admitted that he’d assumed Barry was physically male, and told this to his medical students afterwards in lectures at McGill as a cautionary tale to warn them to make a thorough examination of all their patients.

The military, meanwhile, kept to the firm line that the rumours were just gossip.

Part of the myth that grew up around Barry was that an autopsy done after his death proved he was female beyond a doubt. Actually, no such autopsy was ever done – as Canadian doctor Sir William Osler discovered when he tried to dig up the facts of the story. Barry requested that his body remain unexamined after death, and a contagious disease had finally finished him off so they’d buried him quickly.

The story that Barry was a woman came from Sophia Bishop only. No one else reputed to have seen Barry naked would vouch for it. Barry was very androgynous, and often sexually connected with men (such as Lord Somerset), and this was considered enough evidence to corroborate the story.

Few now believe that Barry was simply male-bodied — though if he was, the sodomy story alone would have been enough to earn him a place in this queer history. It seems fairly clear that he was keeping some sort of a secret related to his body. Although a military man, he never changed his clothes in front of his fellow soldiers. He never wanted his body to be examined. He always lived alone except for his servant, never married, and avoided physical activities at school (such as boxing) that might expose his body to view.

Furthermore, recent research has shown (in spite of lurid Victorian romances that claimed he was the illegitimate child of nobility) that he was almost certainly Mary Anne Bulkley’s child.

Mrs. Bulkley had one son (named John) and two daughters. Her older daughter, Margaret Bulkley, evaporated from history without a trace four years before Mrs. Bulkley accompanies James Barry to Edinburgh. More convincingly, we have samples of Margaret Bulkley’s and James Barry’s handwriting, and they match. As well, Margaret vanishes at the age of fifteen, and Barry appears four years later in his late teens or early twenties (he claimed to be age nineteen).

The question then becomes, why did Margaret Bulkley became James Barry? The two main theories haven’t changed in about 150 years – James Barry was a woman, or James Barry was intersexed. In popular culture, the first possibility has won out (Barry as a heroic woman), though Barry’s best biographer – Rachel Holmes – believes that there’s more evidence to support the other theory.

There is another possibility, which I have never seen mentioned anywhere: Barry could have been transgendered.

The Problem of Trans History

Trying to uncover a transgendered history, the historian runs immediately into the same prejudice they hit when trying to dig up gay history – the misconception, bolstered by both prejudice and Postmodernism, that this kind of history is an anachronism.

The assumption that trans people appear out of nowhere the minute sex-reassignment surgery was invented is not helped much by the few books and webpages purporting to discuss trans history, which tend to begin in the mid-20th century. Both seem to reinforce the idea that a trans identity is something new.

Yet, there has always been transgenderism – usually damned by association to homosexuality, or treated as a sign of insanity (as in the case of the Roman emperor Heliogabalus). Well into the 20th century, believing oneself to be a gender other than the one assigned based on the appearance of the body was treated as a form of madness, and this supposed madness has even formed the basis of a popular sitcom subplot.

Back to Barry: what if Margaret Bulkley didn’t adopt a male identity because “she” was partially male-bodied, or because “she” simply wanted male privilege, but simply because “she” felt herself to be a man? And, if so, how many others were there out there who successfully “passed?”

There’s no proof, of course – we have no idea how Barry saw his own gender, or even know for sure what his body looked like under his clothes. Yet the fact that the possibility has never even been raised is telling.

Also telling is that of the four possibilities of Barry’s secret – that he was a woman, that he was intersexed, trans, or a homosexual, cisgendered male – the least-queer possibility is the one that seems to have carried the day and won out in popular opinion.

Barry’s life is a good starting point for the discussion of a trans history in Canada. The problem is – before we can have that discussion – we have to admit that it was a possibility, and so far none of the historians or writers who’ve looked into the story of James Miranda Barry seemed to have considered it.

For my next instalment, I’m going to the increasing persecution in the late 19th-century and early 20th century, starting with wrap up this Pre-Confederation history with some concluding thoughts before moving on to late-Victorian Canada.

Sources: Anything written here, except for my own theories and interpretations, are nothing more than a footnote to Rachel Holmes’ brilliant Scanty Particulars, which attempts the delicate surgery of cutting away the layers of myth that have become a tumour on Barry’s story. Holmes is very attached to the intersexed theory, which I don’t think she quite proves, but she makes a very convincing case. Other biographies were riddled with inaccuracy Dr. Barry: Her Secret Story for example, and largely useful only for humour value. Most articles I’ve read on Barry – from the Dictionary of Canadian Biography to Wikipedia — are unhelpful and in Wikipedia’s case, inaccurate (Wikipedia lists a birthdate, for example, which can’t possibly be known).
The sitcom, for anyone who’s still wondering, was M*A*S*H.

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I’ve been on hiatus for a couple of months, partly because of being busy in real life, and partly because of difficulties in research.

However, I’ve finally managed to get a hold of some information on a Dr. James Miranda Barry that I’ve been after, and will hopefully have an article on this individual next Sunday (November 25th)

Thank you to everyone who’s been patient with this site.

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When I set out to research queer women’s history in pre-Confederation Canada, I discovered — not surprisingly — that the silence was deafening. Still, one particular pitch of that white noise – the legacy of Sappho – illustrates how complete the denial around lesbianism was.

Before we can talk about that, however, we’re going to have to take a detour, to clear up a few misconceptions about women in 19th-century Canada.

Women and Literature

Nineteenth-century Canada was the scene of one of the most astonishing women’s movements in Western history – a movement now largely forgotten by a country uninterested in its own past.

This movement was interested not only in extending the vote to women, but in getting women into non-traditional professions and into politics, and with winning equal pay for equal work. It began in missionary and temperance groups, and eventually transformed into a potent political force.

Another root of this movement were women’s literary circles and magazines, and the growing number of women who worked in publishing and writing. While the world of literature was still male-dominated, by 1832 the colony had its first woman’s literary magazine, edited by a woman (Henrietta Muir).

The men were busy working on the military, industrial, and economic aspects of the colony, and lower-class women servants took some of the burden of childrearing and housework off the middle class and upper class, so upper-class women felt that it fell to them to reconstruct British civilization in the wilderness. For this, they needed a literary culture.

This is probably why many of Canada’s “firsts” in the history of the novel belong to women: the first novel set in Canada (Frances Brooke), first Canadian-born novelist (Marie Morin), the first novel set in Canada by a Canadian-born novelist (Julia Beckwith Hart), and the first “psychological” novel (Angéline de Montbrun).

Nineteenth-century feminism was deeply religious and imperialist – in other words, profoundly conservative. Rather than try to break the systems outright that kept women from participating in society, they looked around through history for examples they could imitate. They wanted a historical precedent that could justify their right to step out of the home and into the larger world.

For a woman writer, there were few examples to draw on from British history. Bisexual Aphra Behn still had a dangerous reputation – Conservative MP Thomas Flood Davin called her “much maligned” in 1895, probably for her bisexuality.

Thus, women looking for a literary hero had to reach farther back. As Canadian literary circles were often obsessed with Greece and Rome, many women writers turned to Sappho as their great ancestor.

The Place of Sappho in Early Canada

In 19th-century Canada, it was still possible to invoke Sappho’s name without suggesting homosexuality. Sappho’s poetry was read in translation and sometimes in the original by heterosexual men and women, and she enjoyed a solid reputation as the great poet of the Island of Lesbos. “Lesbian” had been used to mean “queer woman” since 1666, but it was not the most common term – “tribade” was still more popular, the rare times that the subject was discussed at all.

In fact, Sappho (again, usually in censored translation) became required reading for the literate elites of Canada. In an anonymous 1888 satirical play entitled Culture!, a woman named Bella – who is desperately trying to prove herself to the cultural elite – proudly announces that she has read Sappho “in the original French.”

It’s not too surprising then that in the 1850s, there was a government ship called the HMBrig Sappho patrolling the waters off Canada’s east coast to protect the cod fishery from American and French trawlers. In a Canadian historical novel about the Acadians by a woman known simply as Mrs. Williams, a small (male) dog is known as Sappho.

The homosexuality expressed in Sappho’s poetry had been partly obscured by a series of stories invented more than a century after her death, including one very popular tale that claimed that she had committed suicide due to the unrequited love she felt for a boatman named Phaon. This suicide is recounted in a long poem by Canadian poet Charles G.D. Roberts which is simply entitled “Sappho.” There is no hint of homosexuality in Roberts’ poem.

Safely heterosexualized, Sappho’s name appeared everywhere in early Canadian literature, history, and political writings.

In a book of essays on women and society that was sympathetic to feminism, the Reverend Benjamin Austin comments on the lack of women artists in Western history, saying, “…we find from the early days of Sappho to the present, that in every land woman’s voice has been raised in song, and her hands have swept the lyre of poesy,” adding that “we who believe in women’s superior moral and religious endowment may well rejoice that to women as well as to men, the divine afflatus is given.” Austin also mentions that Sappho’s image was once stamped on coins. As well, the great surgeon Sir William Osler recommended work to unmarried women using a verse of Sappho’s in his Nurse and Patient.

Some of the Sappho references that appear in women’s writings:

  • In a memorial to the great poet Isabella Valencey Crawford, Susie Frances Harrison says that Crawford “now sleeps where Sappho guards and guides.” (1891)
  • The great Susanna Moodie, talking about the limits of even great art, said that not even “Sappho’s lyre …/Can twine the olive round the bleeding heart.”
  • Emily Augusta McLennan used Sappho as an epigraph for one of the chapters of her novel Love’s Divine Alchemy
  • One of Margaret Blennerhassett’s poems is a soliloquy recited by Sappho just before her supposed suicide.

Sappho and Homosexuality

The focus on Sappho’s supposed suicide for the love of man in many of the works about her almost seems to betray a kind of anxiety. Her poetry has nothing to say about this man “Phaon,” for whom she supposedly died.

One of the few times I’ve seen Sappho criticized in early Canadian works is a novel named The Canadian Girl by Mary Bennett. Here a young woman named Jane refuses the example of Sappho:

You have recited a great many passages from Dido, some poems of Sappho, and some of Juliet’s speeches, all containing fine beauties, I dare say, but surely dangerous when held up to young women as examples. Excuse my presumption ; I give my opinion—it may be foolish what I say. We like and dislike from impulse, and often not know why.”

The context and the presence of two other women who died for love of a man – Juliet and Dido – suggests that the “dangerous” example here is suicide. Yet no trace of that suicide would not have been found in Sappho’s poetry, which Bennett as the bad example.

It is possible that the educated elites of early Canada only knew Sappho through reputation, and hadn’t bothered to read the poetry itself. It’s also possible that they knew her, as Bella in Culture! says, only “in the original French.”

Yet, once in awhile, there’s a hint that Canadian society was not quite so naïve. In Thomas Webster’s passionate defence of feminism, Woman man’s equal (1873), he felt the need to defend Sappho against unnamed charges against her moral character:

Who has not read or heard of Sappho, the Greek poetess, concerning whose life and moral character there has been so much controversy—one class of writers condemning in unstinted measure, as all and utterly vile ; the other class applauding her as being possessed of every virtue.”

Webster then goes on to praise Sappho for her “virgin purity” and “feminine softness,” and her “delicacy,” which seems like he’s defending her against charges of being excessively masculine. This suggests that Webster was well aware of the other side of Sappho’s reputation.

Sappho remained a figure of poetry for some time – right into the 20th century in fact. The automatic association in the public mind of the words “lesbian” and “sapphic” with love between women really didn’t happen until the second half of the 20th century.

In fact, the first use of the word “Lesbian” I’ve found so far in any Canadian source to refer to female homosexuality is in the private journals of Lucy Maud Montgomery in 1930 — more on this in a later instalment.

Female homosexuality, like male homosexuality, was rarely spoken about in the early 19th century. Yet while traces of male homosexuality are visible in court records and scandals among the elite, female homosexuality was completely invisible – so invisible that Sappho herself could be safely claimed as an archetype of the woman writer, a justification for women’s equality, and a Juliet-like figure in the annals of heterosexual love.

Before we turn to the early Dominion of Canada, we’re going to take one last look at the country in its pre-Confederation days, as we turn to the story of Dr. James Miranda Barry.

Sources: Details on women’s writings in early Canada come mostly from History of the Book in Canada, volumes 1 and 2. The ship HMBrig Sappho is mentioned repeatedly in the Journals of the House of Assembly of Nova Scotia, among other places. The Aphra Behn comment comes from Debates of the House of Commons for 1895. Charles G.D. Roberts’ poem “Sappho” is in Orion and Other Poems. The memorial to Crawford is in Pine, Rose, and Fleur de Lys by Susie Frances Harrison. The anonymous play Culture! takes place in, and was printed in, Halifax. Susanna Moodie’s mention of Sappho is in Enthusiasm and Other Poems. Blennerhassett’s “Soliloquy of Sappho” is in The Widow of the Rock. Osler’s comments on women and work appear in Nurse and Patient — and he seems rather desperate to squeeze the Sappho quote in there, where it fits very poorly. Love’s Divine Alchemy is by Emily Augusta McLennan. There are many, many other Sappho references through the period – this is just a small selection.

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Looking over the political debates of the 19th century, it’s hard not to conclude that Canada’s laws specifying the death penalty for homosexuality died with a whimper instead of a bang.

As I mentioned in a previous article, no one has ever found a case in Canada that ended in execution for a consensual homosexual act. Thus, when the legal reforms came in, they were doing away with a law that was already rarely – if ever – enforced.

These reforms came as part of a package — they represented one small section of a much larger overhaul of the legal system.

The Enlightenment had changed people’s opinions on how laws should work. This plus the success of reforms to the prison system in the last few decades meant that Canadians began to seriously question whether it was necessary to have 200 crimes on the books punishable by death.

For these reasons, the number of crimes punishable by death was whittled down to the smallest handful – murder, treason, and rape – while all other crimes were assigned simple prison sentences.

(These three things would remain punishable by death well into the 20th century — rape until 1954, murder until 1976, and treason until 1988.)

“Sodomy” was just one on a list of dozens crimes that ceased to be punishable by death. Interestingly, since “sodomy” covered same-sex rape as well as consensual acts, the maximum punishment for opposite-sex rape (death) was actually greater than for same-sex rape (prison).

Nova Scotia was the first future Canadian province to put an end to its death penalty for homosexuality, perhaps because it was the first to achieve democracy (it had reached this point two years before, in 1848). This meant that Nova Scotia actually abolished capital punishment for “sodomy” before Great Britain. Sadly, Nova Scotia had to briefly bring back the death penalty when it joined Canada, which still had the death penalty on the books.

Canada’s capital penalty for “sodomy” lingered on another two years after Confederation, when – like Nova Scotia – it went over all its laws and rolled back the death sentence for dozens of crimes. In 1869, the Dominion of Canada finally put an end to capital punishment for “sodomy” – six years after Great Britain, and decades after most parts of the United States.

The “worst of crimes”?

What’s astonishing to a modern reader is how the decision to end the death penalty for homosexuality in 1869 provoked nearly no debate whatsoever in the Canadian parliament.

The reform bill lightening the penalty for a large number of crimes came up for debate seven times – five in the House of Commons, and twice in the Senate. While other aspects of the bill were quite controversial, not one Member of Parliament or Senator ever spoke a word against ending the death sentence for “sodomy.” Far more important for them were provisions to allow whipping as a punishment, and whether or not rape should also be on the list of crimes with reduced penalties.

While “sodomy” was never mentioned, the things MPs and Senators said about the bill do shed some light on why the death penalty was abolished. Here are some of the reasons political leaders gave for wanting to reduce the number of crimes that merited the death penalty or whipping:

  • Prime Minister John A. MacDonald said that the purpose of the bill was to make the laws of Canada more like those of Great Britain — and Britain had ended the death penalty for dozens of crimes.
  • A member for New Brunswick said the bill was to make Canadian law more fair, because the new country had been using Ontario’s and Quebec’s criminal laws. He argued that the new country’s laws should reflect the former criminal law of all the provinces.
  • One MP said that if the laws were too strict – so strict that the public would be outraged by the sentence and judges would be unwilling to find people guilty. Thus, the death penalty’s “efficiency in preventing crime would be entirely neutralized.”
  • A senator named Sanborn toyed with the idea of the complete abolition of the death penalty, , and suggested that society was partially to blame for the actions of criminals.
  • A senator named Tessier said that violent punishments were out of step with the modern world.
  • Another mentioned a case in which a man executed for rape was later found innocent, and said that getting rid of the death penalty would help prevent miscarriages of justice.

Again, none of these arguments were made specifically about “sodomy.” But they may be the key that helps us understand the attitudes of judges and lawmakers at the time. The evidence suggests that the authorities believed – and thought the public believed – that homosexuality was immoral and deserved reform, but that it did not deserve death.

Capital punishment had passed out of fashion. It had come to be considered archaic, barbaric, and ineffectual, and was reserved for the most evil of acts. Given that homosexuality was only assigned a minimum sentence of two years, it’s clear that – whatever official rhetoric – no one actually considered homosexuality “the worst of crimes.”

The Aftermath

The bill was passed on May 21, 1869 by the House of Commons, and got its final rubber stamp on June 22 of that same year.

The end to the death penalty for homosexual acts had a rather unpleasant side effect, however. The theory that judges may have been unwilling to convict if it meant executing a criminal for simple immorality seems to have been true – or at least the conviction rate steadily increases after 1869, and exponentially after 1890.

What’s more, the persecution began to take on a nastier hue. Police raids of bars and safe-houses began by the end of the 19th century, and the government gave itself broad powers to prosecute not only anal sex (the only kind of sex covered by “sodomy” laws) but other kinds of sex between men, or even simple acts of affection between men.

This is a story for another day, though. Before we turn toward this post-Confederation Canada, we’re going to take a look at the silence around female homosexuality, and the strange place of Sappho in early Canada.

Sources: The primary for this piece sources were the legislative Journals of the House of Commons (1869), the Debates of the House of Commons (1869), the Debates of the Senate (1869), Statutes of Canada (1869), and the Journals of the Nova Scotia House of Assembly (1850). General information on laws and attitudes of the time comes from sources already cited in previous articles. I added details about the abolition of the penalty on rape, murder, and so on because people keep finding my site looking for this information. The information comes from an Amnesty International site here.

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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.

The Names

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).

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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 [1813] … 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

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