The Commons invents a crime in a four-minute debate in an almost empty chamber, a nineteen-year-old signs up for the Union army with an X and lives fifty years as Albert Cashier, and the Japanese American Citizens League decides to back same-sex marriage twenty-one years early.
1885
In Public or Private
The Commons invents the crime that convicted Oscar Wilde and Alan Turing
Henry Labouchère, Liberal MP for Northampton, who moved the clause. Photo: MacLure, MacDonald & Co., Public domain. Source.
The bill was about girls. That summer W. T. Stead had published The Maiden Tribute of Modern Babylon in the Pall Mall Gazette, an account of buying a thirteen-year-old from her mother for five pounds to prove it could be done, and the outrage pushed a stalled bill through Parliament. It raised the age of consent from thirteen to sixteen and went after brothel-keeping and trafficking.
Late on the night of August 6, 1885, Henry Labouchère, the Liberal member for Northampton, stood up and moved a new clause that had nothing to do with any of that.
Any male person who committed an act of gross indecency with another male person was to be guilty of a misdemeanour. In public or in private. He did not say what gross indecency meant, and nobody asked.
The Speaker had ruled that at this stage of a bill the House could take any amendment it liked. The chamber was nearly empty. The debate ran about four minutes.
The only real objection was that it was too soft. Labouchère had wanted seven years of hard labour and had been talked down to one by the Home Secretary and the Attorney General. Sir Henry James, a former Attorney General, thought one year was not enough. They settled on two.
It carried in the small hours of the morning, so the vote itself belongs to August 7.
Section 11 became law on August 14, 1885.
Sodomy had been a crime in England for centuries and carried a heavier sentence, but it had to be proved. Gross indecency did not, because it was never defined. It covered private acts, so an accusation could rest on nothing more than one man’s word about what had happened in a room with nobody else in it. Lawyers started calling it the blackmailer’s charter almost immediately.
Oscar Wilde was convicted under Section 11 in 1895 and sentenced to two years with hard labour, the maximum, which the judge said was not nearly enough. Alan Turing was convicted under it in 1952 and took the hormone injections instead of prison.
Consensual sex between men over twenty-one was decriminalised in England and Wales in 1967, in Scotland in 1980, and in Northern Ireland in 1982. The last of Labouchère’s wording came off the statute book in 2003.
Historians have never settled whether he meant it. One account has him moving the clause to wreck the bill by making it ridiculous, and expecting it to be laughed out.
Albert Cashier joins the Union army, and stays himself for fifty years
Private Albert D. J. Cashier, 95th Illinois Infantry, photographed in November 1864. Photo: Abraham Lincoln Presidential Library and Museum, Public domain. Source.
He was nineteen, five foot three, a hundred and ten pounds, with blue eyes and auburn hair. He could not read or write, so on August 6, 1862 he marked an X on the enlistment papers for Company G of the 95th Illinois Infantry, and where the name went somebody wrote Albert D. J. Cashier.
He had been born in Ireland and had come over as a stowaway. He was working as a farmhand in Belvidere, Illinois, and he had already been living as a man for some years before he enlisted.
The 95th marched about nine thousand miles and fought in something like forty engagements. Cashier was at the siege of Vicksburg, where he was captured on a reconnaissance and got away again. He was at Brice’s Crossroads, at Franklin, at Nashville. He was hospitalised with dysentery in 1863 and nobody found out. The other men noticed he kept to himself and did not care to share a tent, and left it at that. He was mustered out with everyone else in August 1865.
Then he went to Saunemin, Illinois, and stayed for forty years.
He worked as a farmhand, a church janitor, a cemetery worker, and he lit the street lamps. The family he worked for built him a small house in 1885. He drew a veteran’s pension. He voted, which no woman in Illinois could do for most of his life.
In 1911 a car driven by a state senator hit him and broke his leg. The doctor who treated him found out, and said nothing. He was moved to the Soldiers and Sailors Home in Quincy, and men from the 95th came to visit.
In 1914 his mind was going and he was sent to the state hospital at Watertown. The attendants there found out too, and put him in a dress, after more than fifty years.
The pension office opened an investigation, because a woman was not entitled to a soldier’s pension. His old comrades gave evidence. They said this was the man who had fought beside them, and they were angry about the dress. In February 1915 the board ruled that his pension should continue for the rest of his life.
He died that October. They buried him in his uniform with full military honours, under a government headstone reading ALBERT D. J. CASHIER, CO. G, 95 ILL. INF.
The first non-white civil rights organisation in America to back same-sex marriage
In 1993 the Hawaii Supreme Court held that refusing marriage licences to same-sex couples looked like sex discrimination, and the country started arguing.
The Honolulu chapter of the Japanese American Citizens League wrote to the couples to say it was with them. Then it took the question to the national organisation. Bill Kaneko put a resolution to the national board in February 1994: marriage is a constitutional right and it should not be denied over sexual orientation. In May the board passed it, ten to three, with two abstentions.
The reaction was bad enough that it went to the floor of the national convention in Salt Lake City. There was a motion there, Resolution Six, to throw the board’s decision out and make opposition to same-sex marriage the League’s official position instead.
On August 6, 1994, the National Council voted. The League’s support stood, fifty votes to thirty-eight, with eleven abstentions.
The argument that carried it was their own history. Japanese immigrants to America had been barred from marrying white Americans, on the grounds that such marriages were unnatural and repugnant, by the same kind of law and much the same reasoning. This was an organisation founded to fight what was done to Japanese Americans, most of whom had been put in camps.
It cost them. The League’s legal counsel resigned, saying that as a Christian he thought these marriages morally wrong. Bill Hosokawa, the most respected columnist they had, said the board had wandered away from what the organisation was for.
No state in America performed a same-sex marriage that year, and none would for another decade.
