“Beyond the Law” The Politics of Ending the Death Penalty for Sodomy in Britain
Author: Charles Upchurch
Publisher: Temple University Press, 2021. 326 pages.
Reviewer: Richard Ward | June 2023
Charles Upchurch’s “Beyond the Law”: The Politics of Ending the Death Penalty for Sodomy in Britain seeks to understand the motivations of those who wished to see the law around sodomy changed (or not) in the first half of the nineteenth century, particularly in terms of the abolition of the death penalty. It does so using a version of “critical queer history” that involves “meticulous (and time-consuming) attention to understanding the different meanings” that the ideas of sodomy, law, and reform had, “depending on where, when, or by whom they were being considered” (p. 6). It is, then, a queer history of politics that ambitiously and innovatively brings together queer, legal, and intellectual histories.
Histories of sexuality have largely ignored the parliamentary events covered in “Beyond the Law,” instead focusing on sexual identities and how the laws against same-sex activity were put into practice. And whilst legal histories have referred to the events in Parliament (in particular, an abolition Bill of 1841 that gained a majority in the Commons but was thrown out in the Lords), they have done so as part of broader narratives of criminal law reform, and, thus, missing the context and possible impact of the intellectual arguments that were made at the time about sexuality and the backgrounds of key players in Parliament. This is a subject that has previously lacked detailed investigation because the discussion of sodomy in the early nineteenth century was often veiled. As Upchurch explains, “members of Parliament went to great lengths to avoid directly discussing sex between men, even on those occasions when it was part of the legislation under review” (p. 4). The book is based on a wide range of source material, primarily parliamentary papers, personal papers, high literature, newspapers, and periodicals—“records that are fragmentary, incomplete, and at times impervious to satisfying interpretation” (p. 3).
The book’s argument is that an amalgam of Enlightenment philosophy, familial affection, popular politics, high politics, and reformist momentum, “experienced by different people, and in different ways, almost brought about a reform that would have changed the legal landscape at a time when many believed that such a reform would not have been possible” (p. 3). To this end, the book starts with an analysis of Jeremy Bentham’s An Introduction to the Principles of Morals and Legislation (1789), asserting that it contains arguments against the criminalization of sex between men. Chapter 2 then makes the case that familial affection was a key motivator for Fitzroy Kelly and Stephen Lushington, MPs who proposed (ultimately failed) Bills of 1840 and 1841 for the abolition of the death penalty for sodomy. Chapters 3 and 4 look at accusations of sodomy within the respective contexts of popular and high politics, demonstrating that the sodomy laws were a battleground both in public and private. Chapter 5 again picks up the theme of intellectual arguments, through an analysis of the multiauthored poem Don Leon, a repudiation of the state’s punishment of same-sex desire and sexual privacy. The final two chapters and a conclusion then examine events within Parliament between 1835 and 1885. Chapter 6 discusses a proposed amendment in 1835 that Upchurch incorrectly interprets as an attempt to end the death penalty for sodomy (more on this below). Chapter 7 meanwhile examines the debates around Kelly and Lushington’s abolition Bills of 1840–1841. Finally, a Conclusion compares the situation in 1861, when the death penalty was abolished for sodomy, to that of the 1830s and 1840s. Upchurch argues that 1861, in many respects, made the punishment of sex between men more severe and arbitrary, before offering a reinterpretation of the Labouchere Amendment of 1885–suggesting that it was, in fact, a long-term goal of the government and served to mitigate the severity of the laws around sex-same activity.
This is an impressive book in some respects and will be of interest to historians of sexuality, criminal law, and intellectual history alike. There is some excellent historical detective work at points. Almost no stone is left unturned in piecing together the background to the key events and figures. Countless hours of keyword searching have uncovered a trove of newspaper reports. A sensitive reading of Don Leon shows that William Beckford likely wrote large parts of the poem. And creative use of the systematic nature of parliamentary records reveals when MPs implicitly discussed the sodomy laws.
It is somewhat curious, then, despite this sensitive reading of oblique sources, that Upchurch has misinterpreted one of the more explicit pieces of surviving evidence. In 1835, the MP Charles Law proposed an amendment to a Bill for altering the law related to offenses against the person that was then working its way through Parliament. Upchurch claims that the first clause of Law’s amendment proposed to end the death penalty for sodomy (p. 152). It did no such thing: at no point did Law’s amendment refer to the death penalty. Instead, it proposed that assault with intent to commit sodomy should be punished more severely than it presently was, either by transportation for a minimum of seven years or by imprisonment up to a maximum of four years. It is a curious misinterpretation, then, and an unfortunate one too, since a significant amount of the book (including the entire first page) is dedicated to revealing this apparently “forgotten” attempt to end the death penalty for sodomy.
This misinterpretation of Law’s 1835 amendment poses some significant problems for the book’s broader thesis. Being generous to Upchurch, it could be argued that although Law’s amendment did not directly repeal the death penalty for sodomy, it might have been intended to undercut capital punishment in practice. Specifically, the second clause of Law’s amendment allowed juries to find men charged with sodomy guilty of assault with intent to commit the offense when penetration could not be proved. Perhaps Law believed that his amendment would end the death penalty for sodomy, de facto, when circumstances at the time would not allow for it to be abolished de jure. In 1840, the Attorney General seemed to have understood Law’s 1835 amendment as an effort to end the death penalty for sodomy (p. 169). However, the wording of the Attorney General’s speech on the matter suggests that it was a simple misinterpretation of Law’s amendment; indeed, I suspect this is the source of Upchurch’s own misinterpretation of the amendment. In short, it would be a very big leap to argue that even though Upchurch has misread the wording of Law’s amendment, the practical meaning of the amendment has been correctly identified.
As a result, doubts are raised about the book’s wider claims. In relation to the specific events of 1835, it undermines Upchurch’s argument (p. 156) that Law was an abolitionist on the issue of sodomy, and therefore, Law faced a confrontation between his personal beliefs and his public actions as the chief sentencing officer for the Central Criminal Court (with responsibility for seeing the hanging laws enacted against convicted sodomites). Nor was it the case in 1835 that MPs cruelly let John Smith and James Pratt be executed for sodomy at a time when abolition was being considered in Parliament because Law’s amendment suggested no such thing.
Finally, it poses problems for Upchurch’s argument that the 1861 Offences against the Person Act—which ultimately abolished the death penalty for sodomy—went in the opposite direction of standardization, and that “it made the law as it related to attempted sodomy and indecent assault between men not only more severe but also far more arbitrary” (p. 193). This is partly a result of Upchurch’s misinterpretation of the 1835 amendment, but also a failure to properly interrogate what the various proposed legislation of 1835, 1840–1841, and 1859 around sodomy had suggested, and how this compared to what was enacted in 1861. Upchurch judges the severity of the 1861 Act according to the then-existing law on attempted sodomy and assault with intent, ignoring the context of the failed legislation that had been proposed in prior years. In terms of the punishment of sodomy, the provision enacted in 1861 (penal servitude for a minimum of ten years) was less severe than the punishment proposed in Kelly and Lushington’s failed legislation of 1841 (transportation for life). In terms of assault with intent to commit sodomy, the punishment enacted in 1861 (penal servitude for a period of three to ten years, or imprisonment to a maximum of two years) was also less severe than what had been proposed in Law’s 1835 amendment (transportation for a minimum of seven years, or imprisonment to a maximum of four years).
Upchurch’s interpretation of how the sodomy laws were put into practice is, moreover, inconsistent. On p. 192, it is argued that the changes enacted in 1861 against attempted sodomy and assault with intent to commit sodomy “had devastating consequences for some men”, with three specific cases cited in support. But on the following page, Upchurch admits that such cases were very much in the minority and, that in most instances, prison sentences for attempted sodomy and assault with intent to commit sodomy continued to be set at no more than two years, as they had been for decades. Those that did receive sentences of more than two years tended to be extreme cases of aggravated assault. What Upchurch fails to sufficiently recognize is that Law’s 1835 amendment, and the 1861 Offences Against the Person Act, addressed what had long been considered a problematic anomaly within the sodomy laws. All acts short of sodomy were legally misdemeanors, carrying a maximum sentence of two years imprisonment. In the eyes of many contemporaries throughout the eighteenth and early nineteenth centuries, it, therefore, seemed that the most serious cases of assault with intent to commit sodomy were being punished too leniently, and assaults with intent as a whole were being dealt with in an arbitrary way.
These points raise questions about Upchurch’s overarching conclusion that the events of the early nineteenth century were the product of “the last remnants of the greater sexual openness of the Georgian period” (p. 3), and of “ethical arguments” that challenged the state’s right to punish private sexual activity. Upchurch claims that these arguments did not extend beyond the early 1840s. In fact, Law’s amendment of 1835 did not propose (directly in legal terms at least) to end the death penalty for sodomy, and instead, it would have made the punishment of assault with sodomitical intent much more severe than it then was–and more severe than it came to be after 1861. And whereas the proposed legislation of 1840–1841 would indeed have abolished the death penalty for sodomy, it would have done so by replacing hanging with a more severe punishment than was enacted in 1861.
None of this is to argue against Upchurch’s call for investigating political history through a critical queer lens (p. 201). That approach, as carried out in “Beyond the Law,” certainly produces some important findings. It reveals that Kelly and Lushington were key players in the events of 1840 to 1841 and that their attempts to abolish the death penalty for sodomy were likely motivated by familial ties. It also reveals that the government (especially with John Russell as Home Secretary) was more supportive of the abolition of the death penalty for sodomy in the 1840s than historians have so far recognized. And a convincing case is made that the Labouchere Amendment of 1885 was a response to events of 1861 and earlier. We do indeed need a queer history focused on issues of power, and not just issues of identity (p. 201), and Upchurch is right to suggest that we need meticulous investigation of the contexts and subtexts (including those of sexuality) behind parliamentary debates if we want to develop a greater understanding of how and why laws came to be. The limitations of “Beyond the Law,” however, remind us how difficult this can be–particularly when faced with oblique sources, but even when the details seem obvious.
Richard Ward is a Lecturer at the University of Exeter.
