While buggery or sodomy carried a death sentence in Canada until 1869, the justice system seemed oddly unwilling to prosecute accused sodomites to the full extent of the law. Death sentences, in general, were usually commuted, so before prison reform in the early 19th century, convicted sodomites often ended up in “gaols.”
“Prisons were awful,” writes Canadian historian Hamish Copley. “‘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 [starved] 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.”
Common gaols were seen to cause convicts “to suffer more than the laws sanction or humanity approve,” so during a movement of prison reform in the Western world a number of judges, including the infamous Alexander Wood, petitioned for changes to the punitive system. When the Provincial Penitentiary of the Province of Upper Canada in Kingston opened in 1835 there was an uptick in convictions. Judges were more likely to give guilty verdicts for the opportunity of penitence.
“Penitentiary” comes from the word penitence, which means “sorrow for sins or faults.” While we often use the words interchangeably, this is distinguished from “jail,” the modern form of “gaol,” with its roots in Latin meaning “cage.” As the name implies, prisoners became the responsibility of priests and ministers who wished an educational as well as spiritual change of their charges.
Copley notes that two men, Patrick Kelly and Samuel Moore, have the unfortunate honour of likely being the first men convicted of homosexual sex between two consenting adults in Canada. Their names appeared in The Western Herald on June 16, 1842, explaining that the two were convicted of sodomy, “to be executed on the 15th day of July next.”
We have little information on Moore other than a brief physical description; black-haired, hazel eyed, dark complexion, 39 years old when he was convicted in what is now Windsor. There’s little more information on Kelly, who was a working class Irish labourer, aged 27 when he was caught in flagrante delicto with Moore.
They had separate trials on the same day and shared a witness, John Cooper, likely the man who caught them in the act. Literally catching sodomites with their pants down was the only evidence that could result in a conviction; another reason convictions between consenting adults were so rare through the British Empire before “gross indecency” laws. Kelly apparently had a bit of a reputation, as other men, including a sergeant, testified at his trial. Like other convicts, they were not executed. The governor general dictated that instead of death, Kelly and Moore’s punishment “should be commuted into Imprisonment in the Provincial Penitentiary during the term of their respective natural lives . . .”
While life in the penitentiary was a vast improvement over the gaols, the penitentiary’s first sodomites had to contend with a cruel warden who was eventually fired after a scandal and provincial inquiry — among his cruelties, he apparently had a thing for “brutal whippings of children as young as 10 for such crimes as ‘smiling’ and ‘laughing.’” To the outside world, prisoners were becoming productive members of society in penitentiaries. Charles Dickens visited the Kingston Penitentiary in 1842, the same year as our sodomites’ convictions, and wrote:
“There is an admirable jail here, well and wisely governed, and excellently regulated, in every respect. The men were employed as shoemakers, ropemakers, blacksmiths, tailors, carpenters, and stonecutters; and in building a new prison, which was pretty far advanced towards completion. The female prisoners were occupied in needlework.”
Despite Dickens’ glowing review, Kelly’s name comes up as “a life-prisoner for sodomy” when he complained of medical neglect and mistreatment. After falling off some scaffolding in September of 1845, Kelly claimed to an inspector four years later “that he was a fortnight in his cell before it was discovered that his thigh was broken.” While it was then treated, he claimed his leg was now “lame.” The report notes that inspections by the Surgeon were regular, that Kelly had mixed up his dates, and that he admitted to not keeping off his leg as directed by the doctor, so the complaint was dismissed, even though Kelly’s leg never healed properly.
We don’t know if Kelly and Moore, both eventually released despite the life sentence, were longterm lovers or a one-time, interrupted encounter. Taking off his historian’s hat, Copley describes a sense of outrage. Kelly, Smith and two other convicted sodomites — there were only ever five in Canada as far as his research has found — who ended up in the penitentiary were all consenting adults; one of them, an older man, died of the “prisoner’s disease” while serving time, while “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,” writes Copley.
I like to posthumously give them a small win over the judicial system. If the convicts ended up becoming penitents, feeling “sorrow for sins or faults,” I would like to imagine the only sorrow they ever ended up feeling was regret for getting caught, and that they went back to their lawbreaking ways after their eventual release.
(History Boys appears on Daily Xtra on the first and third Tuesday of every month. You can also follow them on Facebook.)
(Original illustration by Stephen McDermott)