Sex between men at this date was defined as sodomy and, if the act involved both penetration and emission, was a capital crime.
However, the imposition of the death penalty was haphazard and sporadic, and life imprisonment or transportation might be imposed instead if men were convicted. The last executions for sodomy in England took place in 1834 but the death penalty was not removed from the books until the Offences Against the Person Act of 1861, in spite of efforts of humanitarian reformers to include sodomy in several bills aiming to remove a range of crimes from the slate of capital offences. Other sexual acts were considered attempted sodomy or indecency and also criminalised. The use of the pillory as punishment had been discontinued in 1816.
The criminality of the acts and the social stigma led to a good deal of extortion under threat of accusations of incitement to sodomy, leading to the passing of laws on the subject (the term ‘blackmail’ did not come into use until some decades later). Thus although the 1885 Labouchere Amendment to the Criminal Law Amendment Act (under which Oscar Wilde was convicted) has been described as a ‘blackmailers’ charter’, historians such as Charles Upchurch, in Before Wilde: Sex Between Men in Britain’s Age of Reform (2009), Harry Cocks, Nameless Offences: Homosexual Desire in the 19th Century (2003), and Angus McLaren, Sexual Blackmail: A Modern History (2002) have demonstrated that blackmail posed a considerable threat to men who had sex with men from a much earlier period.
Some decades ago, the influential French philosopher Michel Foucault claimed that before the late nineteenth century there was no such thing as a homosexual identity, there were only people committing same-sex acts. And then historians in various countries went delving into the records, and when they surfaced, said, ‘well, actually…’ By the late eighteenth-early nineteenth century there was beginning to be a sense that there were some people who had a natural disposition towards sexual activity with their own sex (though not necessarily exclusively), or at least there were cultural tools available for individuals to start thinking in such ways: see this blog post by Charles Upchurch, Queers,Homosexuals, and Activists in Early Nineteenth-Century Britain? and the text to which he refers. Theo van der Meer has argued for this development having taken place in the Netherlands by the end of the eighteenth century, but unfortunately most of his work is only available in Dutch.
The Utilitarian philosopher Jeremy Bentham wrote an extensive manuscript in 1785 arguing for the repeal of the sodomy laws, although this remained unpublished for nearly two centuries as he was aware how very tendentious such a subject was. (He himself appears to have been entirely heterosexual in his inclinations.)
Sex between women, however, was not criminalised, and evidence is a good deal harder to recover as there are not the legal records in which to pursue them. There are some examples of women whose preference for the company of their own sex created scandal and gossip, such as the sculptor Anne Seymour Damer, and occasional tales of ‘female husbands’ surfaced in the press.
The most famous female couple of the day was the Ladies of Llangollen, Lady Eleanor Butler and Miss Sara Ponsonby. After attempts by their families to enclose them in a convent (Butler) and marry them off (Ponsonby) and one failed elopement from Ireland to England, they were finally permitted to live together in picturesque Welsh seclusion at Plas Newydd, which they renovated in the fashionable Gothic style with an elaborate garden. They devoted their lives to good works, self-improvement, reading, gardening, and delicious meals, received numerous distinguished visitors, and kept up correspondence with the outside world. They were considered a paradigm of romantic female friendship rather than sexual passion, though there were always suspicions.
The very publicly displayed mutual affection of Lady Strachan and Lady Warwick (both married and with somewhat suspect reputations for heterosexual unchastity) was recorded in satirical prints of the 1820s: Love a la mode, or two dear friends, and another one showing their husbands breaking in upon their canoodling session in a parlour.
Meanwhile, in Yorkshire, Anne Lister (1791-1840) was discovering her own lesbian desires and finding the study of the classics of considerable assistance. Her copious diaries – much of them in cypher – constitute a rich resource for the life of an independent woman of the era who had consummated sexual relationships with a number of women and entered into what she considered a marriage with the heiress of a neighbouring estate.
There were various reported cases of passing women – several famous instances who served in the army and the navy as well as the occasional female husbands – but at this historical remove it is very hard to determine whether these women lived for part or all of their lives as men as an expression of trans identity, in order to enjoy sexual relationships with other women, or to pursue occupations that were not open to women. The most famous case from the first half of the nineteenth century was Dr James Miranda Barry, born Margaret Bulkeley, who became a noted military doctor, surgeon and hygienist. Originally entered for medical education at Edinburgh to prove the capacities of the female mind for such training, Barry lived as a man, though one noted for eccentricity and contentiousness, throughout a lengthy and distinguished career that spanned the British Empire. Barry was only revealed to have been female after death.
When men were discovered to have been passing as women, the presumption was usually that this was for purposes of homosexual prostitution. See the case of ‘Eliza Edwards’ discovered on post-mortem to have been a man.
- Pride of Place: England’s LGBTQ Heritage
- Rictor Norton’s Gay History and Literature Website
- Proceedings of the Old Bailey: Community History: Gay and Lesbian Subcultures
L.A. Hall, FRHistS