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A Wave of “Infamous Crime” Clause Making?

Since at least the 1960s, queer activist archivists and historians have been drawn to the anti-sodomy legislation that criminalized sex between men on land and at sea. In doing so, they have documented the state violence meted out upon men convicted (and occasionally sentenced to death) under various criminal laws for sodomy, buggery, and bestiality in England and its empire over centuries and across continents. During the twentieth century, the gradual “decriminalization” of sex between men in some parts of the Commonwealth helped to bolster a historical narrative that gave pride of place to these anti-sodomy laws and overshadowed the many other tactics used to shore up the gender and sexual binary so vital to the reproduction of empire and the structure of settler colonialism.


But we know other discriminatory laws regulated same-gender sexual encounters and still do. We hear and live with them daily across North America. At the first large-scale Canadian direct political action for LGBT rights on 28 August 1971, a list of ten demands later republished in the Body Politic called historic attention to the extent of legally sanctioned gay and lesbian oppression in Canada. Protestors demanded an end to police and medical violence, surveillance, and discrimination, amendments to divorce, adoption, and immigration laws, and the extension of equal civil rights. These demands became opportunities for historians of the twentieth century to examine the multiple ways that homophobia was the business of the settler colonial state. But what of those of us who are nineteenth-century historians? Where might we locate examples of colonial legislation beyond those commemorated in chronologies that criminalized sodomy?


For the past few years, I have been working on a book that aims to answer these (and other) questions about the history of sodomy and white settler self-government in the British colonies that, in 1867, became Canada. This project centres on a series of queer microhistories of sex between men enmeshed in larger empire-wide deliberations over the nature and form of colonial governance. In doing that work, I discovered that settler administrations in British North America, as they worked to implement responsible government in the 1830s and 1840s, also sanctioned heterosexism through nebulously-named “infamous crime” clauses.


An image of text from a historical document. The writing is in French but defines an infamous crime in relation to sodomy law.
One of two "infamous/infâme crime" clauses enacted for Lower Canada. Credit: Four bills, from the Legislative Council, to consolidate, amend or repeal the laws regarding the administration of criminal justice in Lower-Canada/Quatre bills, du Conseil législatif, pour consolider, amender ou abroger les loix relatives l'administration de la justice criminelle dans la province du Bas-Canada, (Quebec: 1829), pp. 12-5.

So, what exactly constituted an “infamous crime”? Unlike anti-sodomy laws that kept sex between men a capital crime for much of the nineteenth century, we might think of “infamous crime” clauses as a form of state-sanctioned oppression that governed the lives of men who served out a sentence for a sodomy-related crime or feared being accused of one. Though relatively expansive (and vague) in scope and scale, this wave of “infamous crime” clauses stipulated the quotidian consequences for queerness in settler society. British historian Charles Upchurch, who found “infamous crime” clauses among the British Threatening Letters Acts of 1823 and 1825, argues that such clauses made it illegal to “accuse a man of showing sexual interest in another man, provided there had been some offer to exchange anything of value in return for silence.” In Britain, a “wave of prosecutions” followed that saw court officials and newspapers reference the new “infamous crime” clause as the catalyst. What shape might an “infamous crime” wave take in British North America?


To date, a cohort of undergraduate research assistants and I have identified nearly twenty instances of “infamous crime” clauses as tools of straight settler state-building across British North America between the 1820s and 1850s. This excludes any references to “infamous crime” found in newspapers, natural histories, and published sermons or the scattered archives of the settler colonial judicial system. We think the oldest use of the clause appeared in the late-1820s in the bilingual Journals of the Legislative Council of the French and Catholic British colony of Lower Canada. Akin to their metropolitan counterparts, Lower Canada’s “infamous crime” [crime infâme] clause made real a man’s fear of having an accusation of sodomy hurled at them by another man.


X. And for defining what shall be an infamous crime within the meaning of this Act: be it further enacted by the authority aforesaid, that the abominable crime of buggery, committed either with mankind or with beast, and every assault with intent to commit the said abominable crime, and every attempt or endeavour to commit the said abominable crime, and every solicitation, persuasion, promise, or threat offered or made to any person, whereby to move or induce such person to commit or permit the said abominable crime, shall be deemed to be an infamous crime, within the meaning of this Act.


When colonial administrators in New Brunswick implemented an “infamous crime” clause in 1831, they reproduced the infamous crime definition used in Lower Canada. Five years later, Prince Edward Island followed suit in their new Punishment for Offences Against the Person and Property Act. On the eve of the 1837-38 Canadian Rebellion, there appears to have been a consensus across the British North American colonies that anything to do with sexual intimacy between men (real or imagined or threatened) troubled their settler selves and colonial rule writ large. These “infamous crime” clauses conceived any “sign of sodomy” to borrow Zeb Tortorici’s phrase, a queer threat to settler manhood.


As colonial “infamous crime” clauses located heterosexual practices as core to definitions of settler manhood, they also made unqueered straight men fit for responsible settler self-government. One way that colonial administrations put “infamous crime” clauses to work was the incorporation of new towns or municipal governments. These assertions of white settler permeance and Indigenous dispossession were also an opportunity to use “infamous crime” clauses to keep men with troubling sexual practices from serving on public councils. When the Upper Canadian Legislature set out the Rules of Incorporation for Toronto in 1834, it granted the “common council” the “authority to punish its Members.” Councillors could be disciplined for “disorderly behaviour” or expelled if “convicted of an infamous crime.” A man removed for his sexual disorder forfeited his “right and power.” Similar legislation was passed in 1838 when Kingston was incorporated as a town and for the City of St. Hyacinthe in 1857.


Imperial interventions throughout the 1840s buttressed colonial efforts to use “infamous crime” clauses to establish heterosexual qualifications of settler manhood. The Canada Government Bill passed by the British Parliament on 28 July 1840, as imperial administrators were deliberating whether sodomy ought to remain punishable with death, set out the legislative framework for the empire’s latest experiment in responsible white settler self-government. The final Canada Government Act was explicit about those men who were qualified (and those who were not) to serve on the colony’s Legislative Council. One had to be a man, at least twenty-one years old, and a natural born or naturalized subject of Her Majesty. Other provisions detailed how to “vacate” seats and revoke membership. These included a wide swath of unmanly actions, one of which was being convicted “of any infamous Crime.”


Similar legislation was encouraged for the Legislative Council in New Brunswick. Writing from Downing Street on 11 July 1843, the Colonial Secretary Lord Stanley instructed Governor Colebrooke of New Brunswick on the heterosexual and gendered qualifications for settler self-government. Stanley suggested the colony follow the Government of Canada Act when appointing and removing legislative councillors. Removal was warranted “in any case where a member should be convicted of any of the crimes, which have in the technical sense of the word are distinguished as infamous,” Stanley explained. This rule, he felt, could “be effectively established” with little difficulty.


An image of text taken from a historical document in English.
Image: Colonial Office Despatch sent to Governor Colebrooke from Downing Street, re: “improvement of the Legislative Council.” Number 4 addresses the matter of “infamous crimes.” Credit: Journal of the Legislative Council of the Province of New Brunswick, 1844, (Fredericton: J. Simpson, 1844), pp. 35-6.

How should we interpret the number of “infamous crime” clauses established across British North America in the second quarter of the nineteenth century? “Infamous crime” clauses enacted by settler and metropolitan administrations, similar to the hundreds of anti-LGBTQ+ and anti-trans bills introduced and enacted over the past two years, were a tool used to maintain masculine authority and fend off sexual challenges to it. Their establishment in the 1830s and 1840s at the very moment settler administrations were barring women electors and legislating the “gradual civilization” of Indigenous people reinforced a hierarchical structure of settler-colonial rule oriented toward straightness. What might we say of the effectiveness of these clauses, especially on social and cultural understandings of same-gender sex and intimacy? First, their scope was intentionally broad. Second, and this is on full display with the recent and controversial decisions of school and library boards to ban books and pride flags, “infamous crime” clauses shed light on the everyday understanding of the threat queerness was believed to pose to the project of settler colonial rule in the mid-decades of the 19th century.


While these “infamous crime” clauses reaffirmed the unnaturalness of sex between men for settler society, the scattered nature of their use in colonial archives across five colonies makes it challenging to determine their larger historical impact at this stage of our research. Nonetheless, this wave of nineteenth-century “infamous crime” clauses raises crucial questions for students of history about the intersection of the criminalization of gender and sexual non-conformity and self-government in the past and the present. These “infamous crime” clauses – along with their troubling twenty-first-century manifestations – remind us that the heterosexist gender binary so foundational to the structures of settler colonial rule (then and now) required concerted efforts to maintain and extended well beyond sex and sexual expression.


 

Dr. Jarett Henderson is a faculty member in history at UC Santa Barbara, where he teaches undergraduate and graduate courses on sex, gender and sexuality and the comparative histories of British settler colonialism. He also coordinates the Gender + Sexualities Research Cluster, directs the UCSB Undergraduate Journal of History, and is an external faculty affiliate of UC Berkeley’s Canadian Studies Program. His research seeks to rethink 19th-century Canadian settler colonial histories within a transnational and trans-imperial framework. He is interested in how the trans-colonial project of settler self-government across the British colonies that became Canada was enmeshed with larger empire-wide debates about whiteness, masculinity, sexuality, and political independence.

 

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