Homosexuality in Great Britain Section Two: Legislation

Tuesday 21 March 2017.
 

Legislation

This is the 2nd section in the History of Homosexuality in Great Britain. Legislation against homosexuality first became a function of the state with the Buggery Act in 1533. Prior to this it was the role of the church to regulate homosexuality and it was called sodomy. The next change came with the Offences Against the Person Act in 1828 and 1861. A further change and an important one came with the passage of the Criminal Law Amendment Act in 1885, particularly Section 11. With this legislation acts of gross indencency between males whether committed in public or private was a misdemeanour and was liable to imprisonment for up two years. This change expanded the definition of a homosexual act while at the same time making it easier for the prosecution of homosexuality. A fourth piece of legislation, the Official Secrets Acts in 1889 indirectly dealt with homosexuality.

Legislation against sodomy was in place and enforced well before the Criminal Law Amendment Act was passed in 1885. The pre-existing legislation was based on the 1533 statue against sodomy with mankind or beast and had been modified in the course of the nineteenth century. In 1828 it was re-enacted in the Offenses Against the Person Act, a piece of legislation which covered murder, abortion, rape, and sex with girls under twelve. Further offenses were added to the Act in 1861 and sodomy was dealt with a new unnatural offenses subsection. The death penalty was replaced with imprisonment for between ten years and life, whilst attempted sodomy or any decent assault upon any male person carried a sentence of between three and ten years imprisonment or up to two years with hard labour. When the Criminal Law Amendment Act was added to the statue books in 1885 these existing measures remained in place and section 11 - the so-called Labouchere Amendment came as an ill-defined addendum. (Cook, London and the Culture of Homosexuality, 1885-1914, p.42)

In Englandł from the reign of King Henry VIII to that of Queen Victoria, those convicted of the abominable crime of buggery or sodomy were liable to suffer death and in practice frequently did so. In 1861 (1889 in Scotland) the maximum penalty was changed to life imprisonment. By the Criminal Law Amendment Act of 1885, homosexual acts of gross indecency not amounting to buggery, which had hitherto not been regarded as a crime at all, were made subject to a maximum of two years in imprisonment with hard labour. (Hyde, The Other Love An Historical and Contemporary Survey of Homosexuality in Britain, p.5)

British legislation, on close examination, was archaic and highly ambivalent in respect to any kind of homosexual category. The Buggery Act of 1553 remained the basis for legislation until 1967. Also, the infamous Criminal Law Amendment of 1885 simply made all sex acts between all males criminal, rather than indicating any kind of special legal classification. In comparison, Continental states appeared to tolerate a burgeoning scientific discourse on the matter. Legislation in these states either allowed consensual sex between male adults, or had legislative arrangements that were more tolerant than Britain. For instance, France had decriminalized sex between consulting adult males with the implementation of the Codes Napoleon 1805. Also, the Codes Napoleon were adopted by Italy in 1889. (Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 27)

There is little to suggest in the legal framework for prosecuting sex between men that the British legislature, in the late nineteenth century, purposively constructed through a law concept of a homosexual identity. Labouchere’s amendment to the Criminal Law Amendment Act in 1885 did not, as historians have claimed, create a legal definition of a homosexual type that then, in turn, constructed notions of this type amongst the general public. The general public, or at least significant sections of urban dwellers demonstrated, throughout the second half of the nineteenth century, a well-developed and tacit understanding of the guises and location of this sexuality. These males offended and threatened developing perceptions of what was required to attain full adult masculinity. The legislature perpetuated, throughout the second half of the nineteenth century, an archaic, highly inefficient and ambivalent legal framework for prosecuting sex between males. The importance of protecting and bolstering masculinity as central to gender and class structures meant that it was not in the interests of the British state to enquire to deeply or to prosecute this crime efficiently. Even the legislation controlling males soliciting males in 1898 only classified the guilty as vagabonds and rogues, along with pimps, dossers, beggars and female prostitutes. Legal clarification and classification of sexuality between males would have revealed and publicized that this sexuality existed at all. (Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 115-116)

1. Buggery Act 1533

The Buggery Act of 1533, formally An Acte for the punysshement of the vice of Buggerie (25 Hen. 8 c. 6), was an Act of the Parliament of England that was passed during the reign of Henry VIII. It was the country’s first civil sodomy law, such offences having previously been dealt with by the ecclesiastical courts. The Act defined buggery as an unnatural sexual act against the will of God and man. This was later defined by the courts to include only anal penetration and bestiality. The Act remained in force until its repeal in 1828. Buggery remained a capital offence in England and Wales until the enactment of the Offences against the Person Act 1861; the last execution for the crime took place in 1836.

It was a short piece of legislation, which originated in the House of Lords, declaring the detestable and abominable Vice of Buggery committed with mankind or beast to be a felony subject to the penalties of death and loss of property customarily suffered by felons, without the benefits of clergy, which meant that offenders in holy orders could not claim to be tried in ecclesiastical courts. (Hyde, The Other Love An Historical and Contemporary Survey of Homosexuality in Britain, p.39)

Furthermore, the prevalence of homosexual conduct is attested by the fact that sodomy was regarded from early times as an ecclesiastical offence, although it did not become a felony and thus subject to ordinary criminal jurisdiction until the reign of Henry VIII. (Hyde, The Trials of Oscar Wilde, p. 349)

The Act (25 Henry VIII, c. 6) was repealed in 1547 by Edward VI, along with other legislation passed in his father’s time, but it was re-enacted in 1562 (5 Elizabeth c. 17), when Parliament ordained that it was to be perpetual. It remained a capital offence until the beginning of the nineteenth century, when the death penalty was abolished for this as for many other offences at the instigation of Sir Robert Peel, then Home Secretary. (Hyde, The Trials of Oscar Wilde, p. 350)

The Buggery Act remained the basis of legislation for prosecuting acts of anal sex between men until 1967. When sex between two men in private was decriminalised for men over 21, the Sexual Offenses Act of 1967 did not distinguish between anal sex and other forms of sexual contact between men. It is arguable that this legislation, in 1967, was the first English law to distinguish a class of men who sex with other men. The 1967 legislation accommodated the sexual lifestyles of men who, as long as they conducted their various and consenting sexual acts in private and the sexual encounter numbered no more than two persons, would not be prosecuted. (Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 94)

However, in the eighteen century the judiciay went by laws passed by the Tudor monarchs. In the first of these, a temporary measure passed in 1553, buggery with man or beast became a capital offense. This ruling was made perament in 1540. It was than refined during the reign of Edward VI, only to be repealed by Mary Tudor, along with other new legislation that had been passed by Henry VIII. Under Elizabeth I it was placed on the statue books again in 1562 where it stayed until 1861 when it was decided to replace the death penalty for convicted offenders with imprisonment for at least ten years, and possibly for life. (Goldsmith, The Worst of Crimes Homosexuality and the Law in Eighteenth-Century London, p. 31)

As we have seen, sodomy had been made a civil offence in 1533 by Henry VIII, a law confirmed during the reign of Elizabeth I. Although the 1533 Act did not attempt to define what was meant by buggery, later jurists attempted to specify what the act of sodomy actually described in law. (Cocks, Nameless Offences Homosexual Desire in the Nineteenth Century, p. 32)

2. Offences Against the Person Act 1828, 1861

The Offences against the Person Act 1828 (also known as Lord Lansdowne’s Act) was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person (an expression which, in particular, includes offences of violence) from a number of earlier statutes into a single Act. It was one of a number of criminal law consolidation Acts known as Peel’s Acts passed with the object of simplifying the law. Further changes were made to this legislation in 1861.

In Sir Robert Peel’s Offences Against the Person Act of 1828, the requirement of proof was disminished to evidence of penetration only, which resulted in an increase in convictions. Nonetheless, the retention of the capital charge meant that juries were still reluctant to convict for unnatural offenses, as men continued to be hanged until 1836 for sodomy and the charged remained a capital indictment until 1861. (Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 60)

The Offences Against the Person Act of 1861, finally removed the capital charge for sodomy. (Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 61)

The 1861 Act had removed the capital indictment for sodomy, but retained the archaic Buggery Act of 1533 as the basis for legislation. The 1861 Act stipulated that sentences for convictions of sodomy should be life imprisonment with penal servitude. In addition, the Act stimulated the minimum sentence, which must be no less than ten years penal servitude. (Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 96)

Until 1861 sodomy was punishable by death; in that year the penalty was reduced to penal servitude of between ten years and life; but less homosexual practices were not then illegal. (Hichens, Oscar Wilde’s Last Chance The Dreyfus Connection, p. 34)

The major legislative changes were in 1828, 1861, 1885 and 1889. The first of these changed the requirements of evidence in sodomy trials from penetration and emission in the body to penetration only. The 1861 Offences Against the Person Act formally abolished the death penalty for sodomy and introduced instead life sentences of penal servitude. It also formalized the maximum and minimum sentences for indecent assault by introducing a prison term of between two and ten years as the standard sentence. In 1885, Labouchere’s amendment ostensibly introduced the new offence of gross indecency, but did not enlarge the scope of the law any further. Neither did it affect sentencing practice in a noticeable fashion. The law regarding soliciting was changed in 1889, making it possible to prosecute someone for importuning a homosexual offence. (Cocks, Nameless Offences Homosexual Desire in the Nineteenth Century, p.30-31)

3. The Criminal Law Amendment Act 1885

The Criminal Law Amendment Act 1885 or "An Act to make further provision for the Protection of Women and Girls, the suppression of brothels, and other purposes" was the latest in a 25-year series of legislation in the United Kingdom beginning with the Offences Against the Person Act 1861 that raised the age of consent and delineated the penalties for sexual offences against women and minors. It also strengthened existing legislation against prostitution and recriminalised male homosexuality.

The specific purpose of the Criminal Law Amendment Act had been effective prosecution of the prepetrators of the widely publicised scandal involving the prostitutionof young girls. (Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 94)

The Criminal Law Act, 1885, raised the age of female consent, while incorporating the notorious Labouchere Amendment altering the existing laws criminalizing buggery. The penalty of imprisonment for ten years to life, reduced from death (never imposed since the 1830s) in 1861, was lowered in 1885 to two years’ hard labor, but applied to all consenting homosexual acts between adults in private creating a blackmail charter(Porter and Hall, The Facts of Life The Creation of Sexual Knowledge in Britain, 1650-1950, p. 224-225)

In 1885, however, Parliament passed an act to protect women and young girls from being victimized and to suppress female brothels, and on to this was tacked at the last moment an amendment which made gross indecency between adult males a misdemeanour punishable by two years in prison hard labour. This was initiated by a radical Member of Parliament, Henry Labouchere, Old Etonian, nephew of a lord, who saw his main role in Parliament as being the exposure of fraud and scandal in high places. He was editor of a weekly paper, Truth, a nineteenth-century version of Private Eye, like which he was much involved in suits for libel. It was under his amendment that ten years later Wilde was to be convicted. (Hichens, Oscar Wilde’s Last Chance – The Dreyfus Connection, p. 34)

Until the Act came into force, on 1 January 1886, the criminal law was not concerned with alleged indecencies between grown-up men committee in private. Everyone knew that such things took place, but the law only punished acts against public decency or conducted tending to the corruption of youth. The Bill in question, entitled, A Bill to make further provision for the protection of women and girls, the suppression, of brothels and other purposes, was introduced and passed in the House of Lords without any reference to indecency between males. In the Commons, after a second reading without comment, it was referred to a committee of the whole House. In committee Mr Labouchere moved to insert into the Bill the clause which ultimately became section 11 of the Act, creating the new offence of indecency between male persons in public or private. Such conduct in public was, and always had been, punishable at common law. There was no discussion, except that one member asked the Speaker whether it was in order to introduce at that stage a clause dealing with a totally different class of offence to that against which the Bill was directed. The Speaker having ruled that anything could be introduced by leave of the House, the clause was agreed to without any further discussion, the only amendment moved being one by Sir Henry James with the object of increasing the maximum punishment from twelve to twenty-four months, which was also agreed to without discussion. (Hyde, The Trials of Oscar Wilde, p. 12)

As originally drafted this measure was designed in the words of its title to make further provision for the protection of women and girls, the suppression of brothels and other purposes and it was brought in by the Government as the direct result of a powerful press campaign carried on by the Liberal journalist W. T. Stead against juvenile prostitution and white slavery. Its principal provision was the raising of the age of consent for young girls from thirteen to sixteen. In its original form, as introduced in the House of Lords, the Criminal Law Amendment Bill made no mention of homosexuals acts, since it was not concerned with this subject at all. After going through all stages in the Lords, the bill went to the Commons, where it was referred to a committee of the whole house after passing its second reading. The committee stage was taken late at night on August 6, 1885, which was to prove a fateful date in the history of English criminal jurisprudence.
Henry Labourchere, the Liberal-Radical M. P. and editor of the popular journal Truth, had put down an amendment on the order paper to insert the following new clause:

Any male purpose who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding one year with or without hard labour.

(Hyde, The Other Love An Historical and Contemporary Survey of Homosexuality in Britain, p.134)

Wilde was prosecuted to conviction under the Criminal Law Amendment Act, 1885, Section 11, which made homosexual acts between consenting males a criminal offence whether committed in public or in private, the section in question having been proposed by Henry Labouchere, editor of Truth, and agreed to in a thinly attended House in the small hours of an August morning on the eve of the parliamentary summer recess. (Hyde, A Tangled Web Sex Scandals in British Politics and Society, p. 208)

It was this Act which included the infamous Lebouchere Amendment. While sodomy had ceased to be a capital crime in 1861, though still penalized by life imprisonment, this Act broadened the definition of homosexual crime to include even consensual acts between adults in private, while reducing the penalty to two years (opposed to the higher sentence imposed on acts often legally defined as attempted sodomy). (Hall, Sexual cultures in Britain: some persisting themes, p.39 in Sexual Cultures in Europe National Histories editors Franz X. Eder, Lesley Hall and Gert Hekma.)

With the passage of the Labouchere Amendment in Britain in 1885, private acts of gross indecency between men became criminalized; while the unification of Germany in 1871 resulted in the adoption of the #152 formerly #143) of the Prussian Criminal Code throughout the German States, which, is paragraph #175 of the Imperial Criminal Code, banned fornication [Unzucht] between male persons’.” (Ivory, The Homosexual Revival of Renaissance Styleł1850-1930, p.16)

The other purpose was met by the ineffably awful clause XI, the Labouchere amendment, which made illegal all types of sexual activity between males (not just sodomy, as hitherto), and irrespective of either age or consent. It is not clear whether this was a genuine attempt to deal with male prostitution, or a Purity measure, opportunistically and irrelevantly tacked on to the Bill, or whether it was Labouchere’s way of trying to overturn a Bill he disliked by a ridiculously extravagant amendment. Whatever the intention, the effect of its enactment is clear: Britain ended up with a proscription going far beyond anything else in any other country at the time. Italy and the Netherlands actually abolished punishment for consenting adults in private in the late 1880s, while it took the advent of Hitler to make Germany follow the new British model. (Hyam, Empire and Sexuality The British Experience, p. 65)

Similarly, section 11 of the Criminal Law Amendment Act of 1885, which criminalized all acts of gross indecency between men, has been seen not merely as a legislative event, but as a piece of legislation which shaped the conduct and understanding of male-male relationships for both external observers and the men involved. The law’s public authority, writes Nancy Cott, frames what people can envision for themselves and can conceivably demand state decree becomes more important to the way we envisage and experience intimacy and the putatively private world of the senses.(Cook, Law, p. 65 in Palgrave Advances in the Modern History of Sexuality editors H. G. Cocks and Matt Houlbrook.)

The Criminal Law Amendment Act was passed, as we have seen, on the back of mass protest, section 11 of the act which criminalized acts of gross indecency between men was a last minute addition, made by the maverick Member of Parliament Henry Labouchere and introduced and passed in a chamber that was virtually empty. It was not the subject of government comment and was barely mentioned in press coverage of the act’s passing. Neither did it significantly add to the available statues that could be deployed against men having sex with other men, all of which remained in force. The amendment was symptomatic of confusion rather than intentionality in the making of laws on sex in England, and raises the key question of whose will this law but also other laws enshrined. (Cook, Law, p. 79 in Palgrave Advances in the Modern History of Sexuality, edited by H. G. Cocks and Matt Houlbrook.)

A further change in the law followed in 1885, when the Liberal PM and journalist Henry Labouchere introduced a clause to the Criminal Law Amendment Act that year. Labouchere’s amendment, as it came to be known, stated that any male person, who, in public or private, commits . . . any act of gross indecency with another male person, shall be guilty of a misdemeanour and punishable by up to two years in prison. What gross indecency actually meant in law was never specified in the legislation, but the courts seemed to have merely added it to existing offences and used it to describe consenting acts which fell short of sodomy. This is how it was applied in the trial of Oscar Wilde, at any rate. (Cocks, Secrets, Crimes, and Diseases, 1800-1914, p. 112 in A Gay History of Britain Love and Sex Between Men Since the Middle Ages, editor Matt Cook.)

Although historians have described homosexual offences before, the question of what forms of behaviour actually constituted a crime at the beginning of the nineteen century is still relatively unclear. This lack of clarity is partly of the consequence of the retrospective interpretations of those, like the Liberal MP Henry Labouchere, who took it upon themselves to change the law and thereby reinvigorate public morals. On 6 August 1885, Labouchere moved his now notorious amendment outlawing acts of gross indecency between men both in private and in public. He justified his clause by arguing that before 1885, the law was insufficient to deal with it, because the offence had to be proved by an accessory, and many other offences very much of the same nature were not regarded as crimes at all. He had therefore provided the means by which Parliament armed the guardians of public morality with full powers to deal with this offence. (Cocks, Nameless Offences Homosexual Desire in the Nineteenth Century, p.17)

In spite of Labouchere’s claims, it is now clear that his efforts did not change the law in a dramatic fashion. (Cocks, Nameless Offences Homosexual Desire in the Nineteenth Century, p.17)

As we have seen, Labouchere’s amendment in 1885 did not revolutionise the law or move its focus from sexual acts to particular homosexual types of people as had been frequently claimed. (Cocks, Nameless Offences Homosexual Desire in the Nineteenth Century, p.31)

Weeks, Cohen and others regard changes in British legislation, particularly the 1855 Labouchere Amendment to the Criminal Law Amendment Act, as the classification and categorization of a homosexual species in legal arrangements. Nevertheless, as Montgomery-Hyde’s work highlights, the sixteenth-century Buggery Act remained the basis for legislation in proscribing sex between men until its repeal in 1967. Alternations to this legislation in the nineteenth century certainly widened its scope to establish in law that all sexual acts between men were criminal. But the legislation that criminalized sex between men in the period in question never, in essence, distinguished between bestiality, heterosexual sodomy or homosexual sex. This ambivalence in the legal definitions up to 1967 defiles the medico-legal analysis of a purposive, legislative categorization of the homosexual. (Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 52)

However, there is little or no sense of historical agency in Weeks’ or Cohen’s studies that would offer an insight to the highly incidental nature of the inclusion of Clause 11 in the Criminal Law Amendment Act of 1885. There is also little sense of the actions of individuals in policy making in the Home Office, the government department that had the responsibility for interpreting and implementing the changes in legislation. Cohen and Weeks present both the legislature and the Home Office as monolithic and faceless engines of purposive intent in the control of sex between men. This chapter, instead, analyses the conflict, chaos and ambivalence that existed amongst ministers and administrators at the Home Office in the late nineteenth century, in respect to control and punishment of sex between men. (Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 87)

In many respects, the inclusion of Clause 11 in the Criminal law Amendment Act of 1885 cannot be viewed as a purposive attempt by the state to construct a pejorative homosexual type through legislation. However, historians such as Cohen and Weeks emphasise the effects of this legislation, once implemented, on broader perceptions of a homosexual identity. Undoubtedly, the inclusion of Clause 11 did have some cultural effects. (Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 93)

The introduction of Clause 11 in 1885 did ensure a catch-all of sexual acts between males. However, in 1885, British legislation did not create a specific legal category of a legal class or type of men who would have sex with other men. Instead, legislation criminalized, through the Buggery laws and Clause 11 in combination, a cascade of sexual acts perpetrated by any man, ranging from anal penetration of other males (and bestiality and the anal penetration of women) to mutual masturbation between males. (Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 97)

In addition, all male homosexuals were not, in any respect, defined as a class in any legal arrangements following Labouchere’s Amendment(Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 112)

Clause 11 of the Criminal Law Amendment Act was not, as historians often claim, a revolution in jurisprudence. Nor did it replace or supersede the Buggery laws as the basis of legislation. There was little in the legal framework to suggest that the legislature purposively constructed a homosexual category. Indeed, it is remarkable how little British legislation altered in this respect. Even the addition of Clause 11, without debate, to the Criminal Law Amendment Act in 1885 did not, as historians claim, create a legal definition of a homosexual type that then, in turn, constructed notions of this type to amongst the public. (Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 216)

4. Official Secrets Acts 1889

This legislation dealt indirectly with homosexuality in Great Britain. This act allowed for keeping information from being publicly disclosed for 100 years. It was used to keep government information closed mainly foreign and military secrets, but also any information chosen by the government. This included information about trials of homosexual related offenses.

Home Offices dossiers of sentencing policies for bestiality and sodomy between men were some of the first to be closed using the Official Secrets Acts in 1889, along with foreign and military secrets. These dossiers contain materials on this issue relating to the late 1880s and were closed in 1889 using the one hundred year closure rule, the most stringent tool secrecy available to government. Another series of dossiers, containing material about prosecution of sex between men relating to the late 1870s, 1880s and the 1890s, but compiled between 1892 and 1898, were finally closed using the one hundred year rule in 1889. These dossiers, containing invaluable insights into late Victorian official attitudes towards the matter of sex between men, only became available in for view in 1989. The secrecy surrounding this material is indicative of the imperative to keep the discussion of sexuality between men out of the public domain, utilizing the rarely implemented one hundred year rule. The late Victorian administrations largely succeeded in this aim, as the bulk of this historically important material does not even appear, even in recent historiography.(Brady, Masculinity and Male Homosexuality in Britain 1861-1913, p. 91)

Bibliography

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Cocks, H. G. Nameless Offences Homosexual Desire in the Nineteenth Century. I.B. Tauris Publishers. London and New York, 2003.

Cocks, H. G. and Matt Houlbrook editors. Palgrave Advances in the Modern History of Sexuality. Palgrave MacMillian. New York, 2006.

Cook, Matt. Law. p.64-86 in Palgrave Advances in the Modern History of Sexuality, edited by H. G. Cocks and Matt Houlbrook.

Cook, Matt. London and the Culture of Homosexuality, 1885-1914. Cambridge University Press. Cambridge, UK, New York, Melbourne, Madrid, and Cape Town, 2003.

Cook, Matt editor. A Gay History of Britain Love and Sex Between Men Since the Middle Ages. Greenwood World Publishing. Oxford/Westport Connecticut, 2007.

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Goldsmith, Netta Murray. The Worst of Crimes Homosexuality and the Law in Eighteenth-Century London. Ashgate. Aldershot, Brookfield, USA, Singapore & Sydney, 1998.

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Hyde, H Montgomery. The Trials of Oscar Wilde. Dover Publications, INC. New York, 1962.

Hyde, H Montgomery. The Other Love An Historical and Contemporary Survey of Homosexuality in Britain. Heineman. London, 1970.

Hyde, H Montgomery. A Tangled Web Sex Scandals in British Politics and Society. Constable. London, 1986.

Hyam, Ronald. Empire and Sexuality The British Experience. Manchester University Press. Manchester and New York, 1992.

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