As parliament again debates the same-sex marriage bill, Dr Ruth Paley, editor of the House of Lords 1660-1832 section takes a look back at parliament, the law, and same-sex marriage…

Despite the controversy that surrounds current discussions about same-sex marriage it is difficult for us in the 21st century to appreciate just how far attitudes to homosexuality have changed over the relatively recent past. In 1953, just 14 years before the Sexual Offences Act of 1967 partially decriminalised homosexual acts between consenting men, the career of promising Labour politician William James Field was ruined when he was convicted of importuning in the urinals of a London tube station. Field’s offence was (according to somewhat shaky and uncorroborated police evidence) to have smiled at young men in neighbouring stalls and to have been seen to ‘look to a young man’s person’.

In the past moral condemnation of homosexuality meant that it was perceived as an offence against God and society. It was thus properly a matter for state intervention. Buggery had always been illegal under church law but in the mid 16th century Parliament made it illegal under statute law as well – and imposed the death penalty on those who were convicted. The law was reformed in 1861 when the Offences Against the Person Act consolidated its provisions but removed the death penalty, substituting life imprisonment or a term of imprisonment of at least ten years instead. Additionally it formalised the offence of indecent assault that had emerged over the previous century. The 1885 Criminal Law Amendment Act criminalized any act of ‘gross indecency’ between men, whether it occurred in private or in public, and imposed a punishment of up to two years’ imprisonment.

Somewhat paradoxically parliamentary intervention actually made it more difficult to repress homosexuality. Although men were hanged for having homosexual relationships convictions were actually quite rare. Given that much social activity was gendered (for example schools, the armed forces, universities, and of course parliament itself), participation in single sex social organisations, close friendships with others of the same gender, or shared sleeping arrangements (bed sharing was commonplace) would not arouse automatic assumptions about sexual relationships. Where prosecutions of men did take place they were often influenced by a rather more complex series of factors than sexuality alone. Personal rivalries provided the context for the trial of Oscar Wilde. Wilde incurred the enmity of the Marquess of Queensberry, father of his lover Lord Alfred Douglas. When Wilde failed in his attempt to sue Queensberry for libelling him as a ‘somdomite’ he opened the door to the criminal prosecution for gross indecency that sent him to prison in 1895.

In practice therefore society was often able to ignore signals of ‘deviant’ sexuality without too much difficulty. It would have been a very different matter if two men had attempted to enter into a legal marriage – though we know that mock marriages did take place. Yet same-sex marriages did exist – but all those so far discovered were between women. Sex between men was illegal; sex between women was not.

One example of such a marriage was the case of 42 year old sawyer James Allen, killed in a workplace accident in 1829. His workmates had often teased him about his somewhat effeminate voice but being a sawyer was a job that required considerable physical strength and it seems that until Allen’s body was taken to St Thomas’s Hospital and stripped for examination no one had suspected the truth – that James Allen was actually a woman, especially as he (or rather she) had been married for some 20 years. The story became the media sensation of the day. The Allen house was besieged by crowds curious to find out just what Mrs Allen had known about her ‘husband’, some of them even going so far as to claim that if Mr Allen was a woman, then it followed that Mrs Allen must be a man.

Assisted by the coroner and inquest jury, who clearly found it impossible to believe that the couple were lesbians, Mrs Allen was able to take refuge in conventional gender stereotyping and her position as a ‘virtuous woman’. She explained that she had suspected that her husband was ‘imperfect’ but he was affectionate and hard working. She had (or so she said) never seen or touched him naked and had no idea that he was bandaging his breasts or that his habit of wearing long loose fitting tunics was designed to disguise his figure. The coroner insisted that ‘I am certain Mrs Allen did not find out how she had been imposed on till lately’ and one of the jurymen declared that ‘I can swear that the wife is a real woman: I am firmly of the opinion that she never knew man but is as innocent as my infant granddaughter.’

Mrs Allen was quickly transformed into an innocent and wronged woman, one who deserved public sympathy for the emotional and financial losses associated with the loss of the family breadwinner and for the trauma of coping with the discovery of James Allen’s deception.

RP