Eye to the Keyhole

It is not​ a coincidence that the quality of writers in Parliament has declined along with the quality of the political class – most of its contemporary representatives are poor at speaking and reasoning, with no sign of what Denis Healey called a ‘hinterland’ – and that this has been simultaneous with a collapse in respect. Is Chris Bryant an exception? Labour MP for Rhondda since 2001, he is a former deputy leader of the House of Commons and, until becoming shadow minister for culture, was chair of the Committees on Standards and Privileges. He has written an account of Christian Socialism, biographies of Stafford Cripps and – strange conjunction – Glenda Jackson, a two-volume ‘biography’ of Parliament, a critique of the British aristocracy, a history of ten gay MPs who opposed appeasement and, only last year, a book called Code of Conduct: Why We Need to Fix Parliament. Bryant was also the first gay MP to celebrate a civil partnership in the Palace of Westminster, and his latest book tells the story of James Pratt and John Smith, the last men to be executed for sodomy in Britain. Pratt was a servant and Smith a labourer; both were out of work when they were arrested, and only Pratt knew how to write. Pratt was 32 and Smith forty. Pratt was married with a daughter; Smith was single and supported his mother. They met, perhaps for the first time, on 29 August 1835, and went to 45 George Street in Southwark, where a lodger, William Bonell, aged 65, let them into his room and left them to it. Shortly afterwards, they were seen in a compromising position by John and Jane Berkshire, the owners of the house. They were surprised while still in the act, a policeman was called and the two men were arrested, along with Bonell. All three men were put on trial. Bonell, found guilty of inciting the offence, was transported for fourteen years (though he died within six). Pratt and Smith were hanged on 27 November 1835.

Bryant was recently accused of filibustering in the Commons, and he’s certainly guilty of this in his new book, which narrates the above events in 235 pages, taking 95 of them to get to 29 August. It’s the first case I’ve encountered where the marvellous ease of access to historical materials facilitated by the mass digitisation of newspapers, books, journals, censuses and court records has had a clearly deleterious effect. Very little information exists about the lives of Pratt and Smith, and Bryant says he has therefore tried to ‘reveal them at least in silhouette’ by ‘reconstructing the world in which they lived and by detailing the many people who had an effect on their fate’. But you know you’re in big trouble when you’re presented with a whole chapter about Deptford, where Pratt lived, abjectly titled ‘Its Excellent Docks’: ‘The main support and consequence of Deptford arose from its excellent docks.’ By this point, you’ve realised that if Bryant knows the name of someone Pratt worked for, he will give us their family history; that if Pratt moves to a new street, we will learn everything about it and about everyone who lived there; that when Pratt’s wife has a baby, we will pause to consider the ways in which giving birth ‘was a dangerous business in London’. In Bryant’s hands, Pratt’s walk into the city on the day of his arrest has something of the flavour, but none of the fun, of Nicholson Baker’s The Mezzanine, which makes a novel out of a man buying a cookie and some shoelaces on his lunchbreak. Bryant sweats nearly ten pages out of it, imagining alternative routes and every scent and sight Pratt might possibly have encountered: ‘If he had had a spare shilling, he might have visited the cathedral-like tunnel at Rotherhithe … If he had wanted to visit the church of St Mary’s Rotherhithe, he would have had to pay the pew-openers who lived opposite, as the church was shut on a Saturday.’ And had Pratt attended the opening of the New London Bridge four years earlier, ‘he would have seen a river full of boats with streamers.’

There are moments when this technique pays off. The account of Pratt and Smith’s rendezvous at the Berkshires’ house, and its disastrous dénouement, gains from descriptive density. It is useful, somehow, to know that the Berkshires ran a coal-hauling business, did furniture removals and rented out a shop nearby, that Mr Berkshire had been fined for dangerous driving, after knocking down a Quaker woman on Holland Street; that they were robbed in 1838 by 16-year-old Jane Smith, the daughter of their maid, whom they prosecuted for taking, along with a lot of silver cutlery, three watches and fourteen gold rings. I picture the Berkshires: busy, eager, self-preoccupied, until something touches them too nearly, at which point they take an interest all the greater for their previous neglect. It makes sense of their not having given much mind to Bonell’s ‘frequent’ habit of bringing men up to his room, sometimes in pairs, but also of Mr Berkshire’s seemingly impetuous decision, when he saw Smith and Pratt enter his house at around four o’clock that Saturday afternoon, to go round to a stable, up into the loft, and get a view into Bonell’s room by removing a tile. And of Mrs Berkshire – once her husband reported that he’d seen the three men sitting on each other’s knee – going swiftly upstairs and putting a bold eye to the keyhole. When she did, she saw that Bonell had left the room, and that Pratt and Smith’s trousers were down. Later, in court, she confirmed that she had seen both men’s private parts. ‘Laying down?’ she was asked. ‘Or in a state of erection?’ After a pause, possibly modest or because she didn’t recognise this way of putting it, she said the latter. The two men were in a ‘state of connexion’ and ‘moving’. She hurried back downstairs and told her husband. (All the while, poor Pratt and Smith, obliviously enjoying themselves.) Mr Berkshire then took his turn, looked and saw, as he stated in court, ‘Pratt laying on his back with his trowsers below his knees, and with his body curled up – his knees were up – Smith was upon him – Pratt’s knees were nearly up to Smith’s shoulders – Smith’s clothes were below his knees.’ A moving detail: there was a ‘great deal of fondness and kissing’.

Then it was at an end. Mr Berkshire barged in (the door was unlocked); the two men jumped up, frantic at their trousers, and begged him to let them go. Bonell returned with a jug of ale and, hoping to defuse the situation, offered Berkshire a drink, not receiving a very reassuring response. Another lodger stood guard while Berkshire went in search of a policeman. And here it again feels valuable, albeit after a detour through the details of the Met’s creation in 1829 and the type of buttons on the uniform, to learn that the policeman who came to the house was called – unbelievably – Sergeant Valentine, that he was from Devon, was a 35-year-old married father of five, with four children still to come, and that he was one of the first men to sign up to be an officer.* (Though we didn’t need to know the names of all the children, the years of their birth or the fact that his mother died in 1832 and his father in 1834.) On arriving at the house, Valentine asked questions, and knew to examine Pratt and Smith’s clothes, so hurriedly pulled back on. Smith’s underlinen was damningly ‘dirty … in front’ but clean at the back, while Pratt’s was clean at the front, but at the back covered with a ‘slimey, glutinous’ matter (Pratt blamed his bowels). The three men – Pratt, Smith and Bonell – were then marched between Valentine and the Berkshires to the Union Hall Police Office, which contained a magistrates’ court. It was less than half a mile, but knowing about that journey and the attention it must have attracted, thinking about the three arrested men’s feelings as they walked along in the daylight, two of them having just had their underwear publicly examined by a policeman – it makes a difference. Here, detail serves a purpose.

As it does when Bryant reports that it had been a busy week at Union Hall: ‘The magistrates had seen 51 cases and sent six prisoners for trial by jury … Eighteen people had been sentenced for a misdemeanour and another twenty had been remanded for further investigation.’ And when he points out that Pratt, Smith and Bonell were jumbled into the dock alongside all the others who had been arrested that day:

Isaac and William Cuff had stolen some apples and pears from a garden in Camberwell and were discharged. Joseph Dale was found guilty of the same misdemeanour and sent to the House of Correction in Brixton for fourteen days. Up for the second time, Thomas Cooper was alleged to have stolen a machine for sweeping chimneys which belonged to John Deaton, and was committed for trial. James Ryall, John Burridge, John White and Thomas Wall were re-examined for passing counterfeit coin but were discharged for lack of evidence. The last man up, Joseph Greenfield, was remanded till Monday for stealing a quantity of nails, ‘the property of some person unknown’. The only man who had not committed a property crime of any kind was John Cooper, who was charged with playing ‘pitch and toss’ with pennies and ha’pennies in the public highway in Camberwell, which was a new offence under the recent Highways Act. He too went to Brixton, for six weeks.

James, John and William may have taken some succour from [the magistrate’s] treatment of the only other men up for a capital offence that day, Thomas White and Alexander Lawson, who were charged with stealing cigars from William Tucker’s shop in Lambeth. Wedgwood decided to discharge them of the felony and instead imprison them for two months with hard labour for the misdemeanour of being found in a shop with an unlawful purpose.

James, John and William may also have hoped that the Berkshires would drop their allegations that evening or that Wedgwood would dismiss the case … In the event, Wedgwood asked some simple questions and remanded them till Monday.

What should already strike us here is the sharp descent to normality, to humdrum criminality and court procedure. Bryant seems almost wounded that the three men were ‘lumped in with a bunch of petty thieves’. It doesn’t quite fit the picture he has offered of a Britain defined by homophobia, what he – despite producing religious endorsements for it – calls an ‘irrational antipathy’ that ‘permeated everything’. He claims that ‘every part of society cast a pall of unknowing over any reference to homosexuality’ and that this ‘peculiar and illogical British obsession led Parliament to constantly tighten the ratchet’, for example, by passing new legislation in the 1820s. ‘Rage, hatred, violence, and humiliation,’ Bryant says, ‘were all a gay man could expect from the public.’

And yet this scene at Union Hall backs up the arguments of the historians H.G. Cocks (who must have heard all the jokes) and Charles Upchurch, who have claimed in two books – Nameless Offences and Before Wilde – that the point about homosexual offences in 19th-century Britain is precisely that they were not exceptional. Though there was a large and insidious increase in the number of prosecutions in the decades after 1780 – and it undoubtedly became much riskier for men to have sex with men – this did not reflect a strategy of deliberate persecution, sponsored by the state or the police or moral organisations, but developments in criminal law, which, as it was reformed and consolidated, extended its reach and empowered more people to bring actions against others, partly by covering their expenses more systematically. (The same trend can be tracked in other unrelated types of criminal prosecution.) As Cocks puts it, ‘the most sustained legal assault on homosexual behaviour in English legal history, which set a pattern of prosecution and punishment that lasted at least until 1967, was made up of countless individual and separate decisions’ and stemmed ‘mainly from the location of these offences at the heart of common life, in everyday encounters, casual accusations, rejected advances and forced proximity’. When Parliament passed new legislation – such as the 1827 Larceny Act, which among many other things criminalised all attempts to ‘move or induce’ a person to commit sodomy – it was responding to longstanding common law practice, formalising and neatening, rather than introducing fresh horrors.

The Pratt-Smith case is in many ways representative: the offence took place between two ordinary men in an ordinary place at an ordinary time of day and was witnessed by members of the public, who decided to involve the law. And yet, it was far from being the case that the law was always out for blood: significantly more homosexual offences were dismissed, or treated with fines, or noted only as ‘known to the police’, than were translated into committals. Grand juries – which decided whether to advance prosecutions to trial – were disproportionately likely to throw out cases involving homosexual offences. Although prosecutions were going up in the first decades of the 19th century, conviction rates, in London at least, were going down. Where the Pratt-Smith case was unrepresentative was in there being apparently clear-cut evidence of actual sodomy. The vast majority of discovered or suggested – and frequently interrupted or rejected – sexual contact between men was classed as an ‘attempt’ at sodomy or as ‘unnatural assault’. These were not capital crimes, and were often harder to prove legally.

Bryant​ knows all this, since he refers to Cocks and Upchurch prominently in his acknowledgments. Indeed, he has relied on their evidence: on several occasions, he provides identical or near identical quotations from primary texts in an identical or near identical order, but in his footnotes cites only the primary source. It may well be that he double-checked a report in the Times, for instance – it’s only a click away – but it is dubious for him to imply that all the discoveries are his own. If he has chosen to overlook much else, this is surely because taking proper account of Cocks and Upchurch’s subtle and complex arguments would risk blunting his j’accuse: ‘It would be difficult not to conclude that the bloodthirsty English legal system wanted a hanging,’ he writes, ‘that James and John were in the wrong place at the wrong time, and [Lord John Russell, the home secretary] could neither be bothered to save them, nor dared to court public opprobrium by changing the law.’ This was ‘one of the great injustices of British legal history – the judicial murder of two men for adult consensual sex’.

It’s not that Bryant doesn’t have important points to make. Obviously the whole thing was cruel and futile. It’s heartrending (though somewhat miraculous) to read Dickens’s description of Pratt and Smith in Sketches by Boz. The men were found guilty on 21 September and were still waiting to find out whether their death sentences would be commuted when he visited Newgate Prison, looking for material, on 5 November:

One of them, who was imperfectly seen in the dim light, had his back towards us, and was stooping over the fire with his right arm on the mantelpiece, and his head sunk upon it. The other was leaning on the sill of the furthest window. The light fell full upon him, and communicated to his pale, haggard face, and disordered hair, an appearance which, at that distance, was perfectly ghastly. His cheek rested upon his hand; and, with his face a little raised, and his eyes widely staring before him, he seemed to be unconsciously intent on counting the chinks in the opposite wall.

Pratt and Smith were unlucky to appear before a deeply unsympathetic judge, Sir John Gurney, and unlucky too that the recorder of London (the senior circuit judge at the Old Bailey) was Charles Ewan Law, who shortly before their arrest, in his other guise as a Tory MP, had tried to make the penalty for attempted sodomy significantly more harsh. It is striking, at least superficially (since Bryant is predisposed to fit facts to his argument), that they were the first people to be executed at Newgate for more than two years, and that their sentences were not commuted, which was the norm for the majority of capital convicts, even for some recent sodomy offenders (though three men had been hanged for sodomy in the previous five years, one as recently as August). Perhaps more striking is that the impressive petitions for clemency made on their behalf to Russell as home secretary made no difference. Among these was an excellent letter from Hensleigh Wedgwood, the magistrate at Union Hall who had committed them for trial, in which he wrote that their ‘dreadful situation … shocks me so much, that I cannot neglect a chance of saving them’. The crime was a bad one, he accepted, but ‘not a crime against society of such a description as to justify the spilling of blood’. He recognised that their inability to pay for proper privacy made them susceptible to discovery in a way that richer men weren’t and that one reason sodomy remained a capital offence was the absence of anyone ‘hardy enough to undertake what might be represented as the defence of such a crime’. There was also a petition organised by Pratt’s wife, Elizabeth, signed by 55 respectable citizens, including – and this seems to fit my picture of them – the Berkshires, at least semi-repentant.

All of this, Bryant thinks, should have told on Russell and on the other members of the government who gathered to consider the potential royal commutation of capital offences in the presence of William IV at Brighton on 20 November 1835, in what was known as a Grand or ‘Hanging’ Cabinet. One reason it didn’t, he suggests, is because the recorder of London, Law, whose job was to summarise the Pratt-Smith case, downplayed the scale of support for clemency, not mentioning Elizabeth’s involvement, or that of the Berkshires. But Bryant doesn’t make comparisons with similar cases, so we can’t judge to what extent this was a deliberate tactic. There are other reasons given: the attitude of the prime minister, Lord Melbourne, who favoured a strict interpretation of the law and heavy punishment; the temporary absence of a lord chancellor, normally the representative of the legal profession in cabinet and a role filled until a year earlier by the energetic reformer Brougham; the possible desire to implement the full sentence, on the salutary grounds that sodomy had not been punished by death at Newgate since 1823. There was also the fact that Pratt and Smith’s case was considered at the same time as that of Robert Swan, who had been found guilty of having extorted money by falsely accusing a gentleman of a homosexual approach, but whose version of events (he really had been approached) had been supported by new testimony. After long debate, Swan’s sentence was commuted to transportation. Compared with this, Pratt and Smith’s case might have seemed open and shut. A week later, they were dead.

In the end​ , Bryant’s awareness of all this contingency, and of the existence of a large, untapped well of compassion, helps to undermine his insistence on homophobic bloodlust. As does the reason for his book’s existence: the fact that Pratt and Smith were the last victims of their kind. It seems plausible to me that Russell, who made more positive difference in his long career than almost anyone in British political history – passing the 1832 Reform Act, creating modern municipal government, expanding and improving education, introducing state supervision of public health and factory work – was waiting on the recommendations of the Royal Commission, made up of legal experts, which had been tasked in 1833 with codifying the criminal law. By chance, on the day that Pratt and Smith were arrested, he had asked it to focus on the question of which offences should be treated as capital crimes. Confronted with the Pratt-Smith case before the commissioners had made their report, and in the absence of extenuating circumstances – since no one seemed to doubt the evidence of the Berkshires and Sergeant Valentine – he might have felt that the law must take its course. In the event, the commission refused to make a recommendation on sodomy, but Russell used its broader findings as a springboard for action, and in 1837 passed ten bills reforming the criminal law, reducing the number of capital offences from 37 to 16 – there had at one point been more than 200 – and demolishing much of the vast, gothic edifice of the 18th-century ‘Bloody Code’. (One capital offence that was abolished was the crime of extortion by accusation of sodomy, under which Swan had been sentenced. The Hanging Cabinet also went, as did the recorder's report.) Between 1828 and 1830 almost 4000 death sentences were handed down and there were 178 hangings; between 1838 and 1840 there were only 249 death sentences and 26 hangings.

In 1841, Russell voted, with a large majority in the House of Commons, for the abolition of the death penalty for sodomy and rape, to be replaced by transportation. This was a clause in the Punishment of Death Bill introduced by the lawyer MPs Fitzroy Kelly, Stephen Lushington and Thomas Talfourd (a friend of Lamb and Dickens), which aimed to remove the death penalty in all cases except treason and murder. Bryant notes this quietly, but seems unaware of Upchurch’s second book, Beyond the Law: The Politics of Ending the Death Penalty for Sodomy in Britain (2021), which covers this moment in detail: not an easy task, since MPs tried their best to avoid discussing the subject directly. Despite this, Upchurch is almost certain, because of the systematic way in which Russell spoke in the debate, going through the bill clause by clause, that he was referring to the penalty for sodomy when he said

They could not make a criminal law, and they did not profess to make one, that could reach every moral offence, according to the degree of its moral guilt, and punish it in proportion to its enormity … It was because the offence was beyond the law and above the law. It was an offence that could only find its punishment in the feelings of mankind, its punishment must be in the conscience of the offender – its punishment was in the retribution of an eternity.

The bill passed the Commons, but the reference to sodomy was removed in the Lords before it became law. The number of capital crimes was reduced to eight, but the principle seems to have been established that in future only treason and murder would be punished with death. The way the sodomy element of the bill was lost is revealing: Lord Winchilsea, a scorching-hot Protestant, insisted on naming as sodomy what Russell and other MPs had shrouded with euphemism, or skipped past. Russell’s successor as home secretary, Constantine Phipps, the marquess of Normanby, was in the Lords, and found himself unable, when directly engaged, to defend this aspect of the bill with any vigour. Twenty years later, in 1861, when the death penalty for sodomy was finally removed (replaced by ten years’ imprisonment, and the penalty for attempted sodomy increased from two to up to ten years), it was done without any parliamentary debate at all, one of 77 clauses in the Offences against the Person Act, itself bundled with six other bills. The same thing happened when Henry Labouchère introduced a clause into the Criminal Law Amendment Act of 1885 replacing ‘attempted sodomy’ or ‘unnatural assault’ with the new offence of ‘gross indecency’, with which Wilde was later charged (Upchurch points out that, contrary to popular belief, this was a significant improvement, since the punishment was a more lenient two years’ imprisonment).

The clear obstacle facing any potential reformers of the laws on homosexuality – once such an effort could no longer be disguised, as in 1841, as part of a blanket attack on capital punishment – was the same one Wedgwood identified in 1835: finding men ‘hardy’ enough to risk the implication that the reason they cared about the rights of homosexuals was because they were homosexuals themselves; or to face down the charge that they were spoiling the nation’s moral and cultural atmosphere, like a cat dragging a half-eaten corpse into the living room and then vomiting some of it up. Bernard Shaw thought this was the problem in 1889; John Addington Symonds thought it was the problem in 1891; and E.M. Forster was convinced in 1960 that if homosexuality could be legalised ‘overnight’ without debate, it would cause little bother. Homosexuality was a well-known social reality, framed in the language of everyday life and in the language of the law (which was avidly reproduced in the newspapers). Increasingly, it could also be framed in medical or psychological terms. What was missing was a political language in which the subject could be discussed by respectable parliamentarians. It took a private bill – and a lot of cultural change around ideas of masculinity, even more than around sex and religion – for homosexuality to finally be legalised in 1967 (though only in England and Wales). At last, the right form of words had been found.