To mark LGBTQ+ History Month 2023, guest blogger Charles Upchurch, Professor of British history at Florida State University, explains how he used the History of Parliament project as a resource when researching his newest book, “Beyond the Law”: The Politics of Ending the Death Penalty for Sodomy in Britain. LGBTQ+ stories are often overlooked within parliamentary history, but Professor Upchurch utilised the History of Parliament to platform the history of those who worked within the British Parliament to reduce the penalties for sex between men in the early nineteenth century.
The rediscovery and analysis of long forgotten evidence can change our understanding of the period from which it came, especially in relation to sensitive topics, such as gender and sexuality. The sexually explicit material culture of everyday life revealed with the rediscovery of Pompeii, for example, showed how our understanding of the ancient world had been filtered through the aesthetic values of later, Christian morality. Political debates, especially over failed and forgotten initiatives, can also reveal long buried and forgotten opinions, practices, and attitudes, and the History of Parliament project is a uniquely useful tool for recovering them.
This was borne out during my work investigating how and why the death penalty for sodomy was ended in the nineteenth century. It is a story that up until recently had received very little investigation, in part because it was felt that the sequence of events was already known as well as it could—or indeed needed—to be.
Jeffrey Weeks, the first academic to write nineteenth-century British queer history, established the narrative that historians subsequently followed: the law ending the death penalty for sodomy was changed in 1861, replacing capital punishment with a sentence of ten years of imprisonment. At the same time the sentences for attempted sodomy and indecent assault were raised from two to up to ten years of imprisonment. Since the last executions for sodomy occurred in 1835, as subsequent death sentences were commuted to sentences of imprisonment or transportation, the change in the law hardly seemed worth celebrating. It was done within a broader criminal code bill, and there was almost no recorded discussion about the change made to the sodomy law specifically. Given that this occurred decades before the origins of modern homosexual identity in the late nineteenth century, there seemed little reason to assume that what had occurred was anything more than a rationalization of the legal code, and it has been treated as such in much of the historiography ever since.
But the real struggle had happened decades earlier, and I was able to reconstruct that previously forgotten sequence of events using the History of Parliament database. My approach was similar to what I had done in my first book, where I had demonstrated that there was far more reporting of court cases involving sex between men in London newspapers in the early nineteenth century than previously suspected. The ability to electronically search newspapers was an aid in this work, but only after figuring out the ways that Georgians and Victorians referred to sex between men without using obvious terms like “sodomy.” Similar techniques are needed when working with the History of Parliament articles. Men in parliament worked to avoid being publicly associated with the discussion of sodomy, and certainly with seeming to condone lesser penalties for it, even as many privately questioned the morality of continuing to have the death penalty for engaging in what was often a private consensual act.
The unravelling of the previous account began by investigating the footnotes of Jeffrey Weeks. Weeks drew on legal historian Leon Radzinowicz’s magisterial multivolume A History of English Criminal Law and Its Administration from 1750 for his discussion of the sodomy law, and Radzinowicz briefly mentioned an 1841 attempt by Lord John Russell to end the death penalty for sodomy that was abandoned as it faced resistance in the House of Lords. But the bill that Radzinowicz attributed to Russell, I discovered by tracking the references in the History of Parliament volumes, was actually proposed by two backbench MPs, one Whig and one Tory, one at the start of his career in parliament, and the other already committed not to run again. Following these individuals, Fitzroy Kelly and Stephen Lushington, brought into focus debates that lasted nearly a year, back to 1840, and involved three separate bills, with references to an earlier bill by a different sponsor, in 1835. The History of Parliament database allowed me to amass the material to challenge the findings of Radzinowicz, something I would never have been able to do otherwise. The excellent biographies of all the members of parliament up to 1832 that are a part of the History of Parliament project, both detailed and frank on matters of sexuality as well as politics, allowed me to use division lists and other sources to reconstruct the networks of supporters for the bills of Kelly and Lushington.
The speed with which I could investigate individuals and their political and familial networks allowed for the completion of a number and range of investigations that would have been otherwise impossible, demonstrating, among other things, that Jeremy Bentham’s arguments against the sodomy law were not kept secret by him, as previously thought, but played a part in these debates. It also helped to establish a family connection, of a sort, between the two cosponsors of the 1840 and 1841 bills, as Fitzroy Kelly’s brother, William Kelly, an unsuccessful actor, was involved in a ten-year relationship with the novelist and playwright Matthew Gregory Lewis. William Kelly has been described as “the absorbing passion of [Lewis’s] life,” and Lewis’s attractions to men, documented and commented on in his lifetime, have been analyzed by scholars throughout the twentieth and twenty-first centuries. Stephen Lushington’s brother was married to Matthew Lewis’s sister, and a web of family, kinship, and connection linked the individuals most involved in fighting for the 1840 and 1841 bills.
Lord John Russell’s argument for ending the death penalty for sodomy, in support of Kelly’s and Lushington’s final bill, is also a part of the parliamentary record in 1841, but it takes some detective work to discern this, even with electronic resources like the History of Parliament online. Russell never says the word “sodomy,” but in his key speech in the 1841 debate, he offers his opinions on the clauses of Kelly’s and Lushington’s bill in the order that they appear in the proposed legislation. In this and many other ways, the highly structured nature of the information in the parliamentary record makes it possible to follow arguments of men who were consciously trying to obscure the nature of the subject at hand, even as events compelled them to speak publicly about sodomy.
Demonstrating that there was a well-developed liberal critique of the sodomy law in the early nineteenth century is not meant to argue that there was a modern homosexual identity in the period, but rather to suggest that such an identity was not needed to have an ethical objection to executing men for a private consensual act. This liberal stance has been forgotten and drowned out by the more vocal individuals who argued that sodomy was “the worst of crimes,” but tools like the History of Parliament allow for the recovery of these minority and controversial but still widespread beliefs.
Up until the 1970s, scholars often ignored or omitted evidence related to same-sex desire that they encountered in the historical record, so the lack of discussion of events such as the one analyzed above should not be taken to indicate that they are absent from the parliamentary records of the eighteenth or early nineteenth centuries. Many other events likely remain to be rediscovered, excavated, and used to enhance our understanding of topics that might otherwise be difficult to investigate. The History of Parliament project provides a powerful new tool to do a new kind of work on gender and sexuality in Britain.
Charles Upchurch is a Professor of British history at Florida State University. His newest book, “Beyond the Law”: The Politics of Ending the Death Penalty for Sodomy in Britain (Temple University Press, 2021) is the first account of the men who worked through the British parliament to reduce the penalties for sex between men in the early nineteenth century. An illustrated 35-minute talk summarizing this research, given as a part of the 2022 iMagine Belfast Festival, can be found here. A 55-minute talk discussing this research in relation to broader debates within British history and the history of sexuality can be found here. Prof. Upchurch’s first book, Before Wilde: Sex Between Men in Britain’s Age of Reform, calls attention to the widespread reporting of court cases related to sex between men in London newspapers between 1820 and 1870, and places family reactions at the center of the narrative. He has served as a Distinguished Academic Patron of LGBT History Month in the United Kingdom, a Scholar in Residence at the Center for Lesbian and Gay Studies at the Graduate Center of the City University of New York, and as the President of the Southern Conference on British Studies.
Further Reading
Montague Summers, The Gothic Quest: A History of the Gothic Novel (New York: Russell and Russell, 1964)
Louis F. Peck, A Life of Matthew G. Lewis (Cambridge, MA: Harvard University Press, 1961)
George Haggerty, “Literature and Homosexuality in the Late Eighteenth Century: Walpole, Beckford, and Lewis,” Studies in the Novel 18, no. 4 (Winter 1986)
Find more History of Parliament LGBTQ+ blogs, here.
Read Dr Martin Spychal’s blog series on the queer MP Lord Ronald Gower, here.
Biographies on Fitzroy Kelly, Stephen Lushington, and Lord John Russell are currently being researched for The History of Parliament, House of Commons 1832-1868. Keep up-to-date with this project by following @TheVictCommons on Twitter and read some of their work, here.
The History of Parliament 