Editor's Published Articles

The Importance of Being Wilde

Part VI: Why was Wilde Persecuted ?

published in Queensland Bar News, December 2003

Links to other parts of this Article

Part I: Wilde and "Bosie" Douglas
Part II: Wilde and Queensberry
Part III: The “booby trap”
Part IV: The perils of litigating a defamation
Part V: Carson’s cross-examination
Part VII: Wilde as a Gay Icon

     Oscar Wilde

... I don't mind your talking morality a bit. Morality is simply the attitude we adopt towards people whom we personally dislike.

- Oscar Wilde,
An Ideal Husband (1895), Act II

The charges on which Wilde was indicted were based on legislation enacted less than 10 years earlier - legislation which, for the first time in English legal history, made it an offence for consenting adult males to commit acts of indecency in private. This provision came about almost by accident, when legislation " to make further provision for the protection of women and girls, the suppression of brothels and other purposes", having been introduced and passed in the House of Lords without any reference to indecency between males, was amended without debate at committee stages in the House of Commons on one member's suggestion. It seems doubtful that any real consideration was given to the implications of this provision, which was quickly dubbed "the blackmailer's charter".

An oft-repeated myth about the Criminal Law Amendment Act of 1885 is the story that the Act, in the form in which it was passed by the legislature, prohibited and punished all same-sex intimacy, but that Queen Victoria struck out all references to lesbianism, expressing the belief that female homosexuality does not exist. Needless to say, by 1885, the role of the monarch under England's constitution was sufficiently settled that Her Majesty could not, under any circumstances, refuse the advice of her Prime Minister to give Royal Assent to a bill which had passed through both Houses of Parliament; and any emendations made by the Queen would have had no legal effect without the approval of both Houses. That this story is not and could not be true, has not prevented its continuing to have a currency in the world's largest repository of myths, hoaxes, and factual inaccuracies - namely the Internet.

If one can rationalise the mind-set that sexual acts between consenting adult males in private justify criminal sanction, there is no immediately obvious explanation for not applying the same reasoning to consensual acts between consenting adult women in private. For centuries, the act of sodomy was a capital offence in England, but, in theory at least, the same law which prohibited anal intercourse between men applied also to anal intercourse between a man and a woman. However, prosecutions for consensual intercourse per anum between heterosexual couples were exceedingly rare, so that the law was discriminatory in practice, although non-discriminatory in theory. In Queensland, this distinction lingers: despite the decriminalisation of homosexual conduct in this State, the age of consent for the act of sodomy is 18, whilst the age of consent for all other sexual acts is 16, regardless of whether the participants are of the same or opposite sexes.

In these more enlightened times, it is perhaps difficult even to understand the reasoning which produced the conclusion that the welfare of society as a whole required the imposition of penal sanctions in respect of the conduct of consenting adult males in private. Until 1886, England's social fabric had survived without this protection, and it has continued to survive following the abolition of such offences (based on the Wolfenden Report) in 1967. In Australia, of course, there is now Federal legislation - the Human Rights (Sexual Conduct) Act 1994, enacted under the external affairs power to give effect to the provisions of the International Convention on Civil and Political Rights - which over-rides any State or Territory legislation which constitutes arbitrary interference with privacy in respect of sexual conduct involving only consenting adults acting in private.

Despite the prevailing moral attitude between 1886 and 1895, prosecutions were rare, and convictions rarer still. This is, no doubt, partly due to the fact that a victimless crime which occurs in private seldom comes to the attention of police authorities, and is difficult to prove. But it was also because the law was unpopular, juries were reluctant to convict, and police and prosecuting authorities only proceeded in exceptional cases, such as where an older man in loco parentis or in a position of authority had taken advantage of that position to corrupt a younger man, or where one party's consent had been reluctantly given whilst drunk or otherwise disadvantaged.

The fact that Wilde was prosecuted, following the revelations at the Queensberry libel trial, is not, in itself, entirely surprising. The fact that he was re-tried after the first jury could not agree, and the fact that the prosecution redoubled its efforts to secure a conviction at the re-trial, are worthy of comment.

Though Wilde was not a popular character at this time, and the press were almost unanimously against him, he was not without sympathisers. As previously mentioned, Carson - whose brilliant advocacy had done more than anything else, with the exception of Wilde's own foolishness, to place Wilde in the dock - urged the government, "Can you not let up on this fellow now?". It was even rumoured that Queensberry felt some sympathy for the victim of his "booby trap", and he wrote a characteristic letter to a newspaper saying:

    In my time I have helped to cut up and destroy sharks. I have no sympathy for them, but I may have felt sorry and wished to put them out of their pain as soon as possible. What I did say was that as Mr. Wilde now seemed to be on his beam ends and utterly down I did feel sorry for his awful position, and that supposing he was convicted of those loathsome charges brought against him that were I the authority that had to mete out the punishment, I would treat him with all possible consideration as a sexual pervert of an utterly diseased mind, and not as a sane criminal. If this is sympathy, Mr. Wilde has it from me to that extent.

There is a fantastic rumour, which still has some currency, that all manner of political intrigue lay behind the prosecution. The Solicitor-General, Sir Frank Lockwood Q.C., M.P., was related by marriage to one of the young men supposedly corrupted by Wilde. It is even said that the Prime Minister, Lord Rosebery, was pressured into action. By this theory, it is suggested that Rosebery previously had a homosexual affair with Francis, another of Queensberry's good-looking sons, who had been a secretary to Rosebery when he was Foreign Minister, and whom Rosebery had elevated to the peerage in his own right as Lord Kelhead in 1893; that the death of Francis Douglas, officially killed in a hunting accident, was actually suicide; that Francis Douglas committed suicide in fear of being unmasked as a homosexual (it was King George V who remarked, when told that one of his friends was homosexual, "I thought fellows like that shot themselves"); and that Queensberry threatened to expose Rosebery if he failed aggressively to prosecute Wilde. This fanciful story is said to be corroborated by the fact that, in the period leading up to Wilde's conviction, Rosebery suffered from serious depression and insomnia, but his health suddenly improved when Wilde was convicted.

The true position between Queensberry and Rosebery was no less mundane, but lends no credence to this theory. Queensberry hated Rosebery with almost as great a passion as his hatred for Wilde. Indeed, in one of his letters which was put in evidence at the libel trial, Queensberry wrote to his father-in-law describing Wilde as a "damned cur and coward of the Rosebery type". The real cause of Queensberry's enmity towards Rosebery was the fact that, by bringing about the elevation of Francis Douglas to the peerage of the United Kingdom, the son secured a seat in the House of Lords, to which Queensberry himself was not entitled - as a Scottish marquess, Queensberry was eligible for election as a representative peer, but had failed to obtain re-election after sitting in the Lords from 1872 to 1880. Thus, in the same letter, Queensberry wrote:

    ... I am now fully convinced that the Rosebery-Gladstone-Royal insult that came to me though my other son, that she [Queensberry's first wife] worked that - I thought it was you. ... It shall be known some day by all that Rosebery not only insulted me by lying to the Queen, which makes her as bad as him and Gladstone, but also has made a lifelong quarrel between my son and I [sic.].

Whilst the supposed political intrigues are fanciful, it is fairly clear that the government was out to get Wilde, especially at the second indecency trial. The prosecution at the first indecency trial was led by Charles Gill, who had been one of Carson's juniors at the libel trial. The Solicitor-General (Lockwood) was brought in to lead for the prosecution on the re-trial - a matter curious in itself, given that Lockwood's nephew by marriage had a significant connection with the proceedings. Lockwood made it clear from the outset that he intended to use every advantage which the law allowed to him, including his right (as a Law Officer of the Crown) to make the last address, whether or not evidence was called in the defence case.

Sir Frank Lockwood, S.G., Q.C., M.P.

At the first indecency trial, Wilde and Taylor were jointly charged, both with substantive offences and with conspiracy. Clarke unsuccessfully objected to the joinder of the counts, as producing the inconvenient result that, whilst the defendants were competent witnesses on their own behalf in respect of the substantive charges, they were not permitted (as the law then stood) to give evidence in respect of the conspiracy counts. The conspiracy charges were then withdrawn at the close of the prosecution case, leading to speculation that the inclusion of conspiracy charges was merely a ploy to ensure that the defendants could not successfully apply for separate trials.

At the re-trial, the prosecution again sought a joint trial of Wilde and Taylor, but, with no conspiracy count, Lockwood could not resist the force of Clarke's observation that there is "no one count in the indictment upon which both of the defendants can be convicted". Lockwood tried to pretend that his reason for seeking a joint trial was that it represented the fairest course towards the accused, drawing from Clarke this obvious yet powerful response:

    The chief ground on which my learned friend has opposed the separate trial of the defendants is that such a course would involve injustice to them. The best judges of that matter are those who have the responsibility of advising and representing the defendants, and we are of opinion that it would involve injustice to both if the prisoners were put on their trial together.

Lockwood then elected to proceed first with the trial of Taylor, obviously for tactical reasons, over Clarke's strenuous objection.

In anticipation that Lockwood's closing address might be more forceful than is appropriate for a prosecutor, Clarke felt it necessary to make these observations:

    I had the honour to hold the office of Solicitor-General, which Sir Frank Lockwood now holds, for a longer period than any man has held it during the last hundred years, and having been Solicitor-General for six years, it is not likely that I, at any place or time, will speak lightly of the responsibilities of that office. But I always look upon the responsibility of a Crown counsel, and especially upon the responsibility of a law officer of the Crown, as a public rather than a private interest or responsibility. He is a minister of justice, with a responsibility more like the responsibility of a judge than like that of a counsel retained for a particular combatant in a forensic fray. ... While, therefore, I say these things without the least unfriendliness of feeling towards the Solicitor-General, I say them in the hope that I may do something to induce my learned friend to remember - what I fear for a moment yesterday he forgot - that he is not here to try to get a verdict of guilty by any means he may have, but that he is here to lay before the jury for their judgment the facts on which they will be asked to come to a very serious consideration. ... [A]s the case has been whittled down, so the efforts of the prosecution have been redoubled; and instead of facing Mr. Gill - of the tone of whose conduct of the last case I had never for a moment to complain - down comes a law officer of the Crown armed with the strange and invidious privilege (which I myself when Solicitor-General never once exercised, and will not exercise if ever I fill that distinguished position again) of over-riding the usual practice of the Court. Whether the defendant calls witnesses or not, the Solicitor-General enjoys the right - though why he should enjoy it I cannot imagine - of the last word with the jury. But for this I might have relied upon the reading of the defendant's evidence at the last trial. Reckoning with this, the defendant, broken as he is now, as anyone who saw him at the first trial must see his is, by being kept in prison without bail - contrary to the practice, and as I believe contrary to the law - will submit himself again to the indignity and pain of going into the witness box.

Clarke's concerns were well-founded. Wilde later described Lockwood's address as an appalling denunciation - "like something out of Tacitus, like a passage in Dante, like one of Savonarola's indictments of the Popes of Rome". Lockwood alluded most improperly to the outcome in Taylor's trial, telling the jury:

    I suggest to you that it was the fact that Wilde ... could rely implicitly on his intimate friend Taylor, that encouraged him to prosecute Lord Queensberry. ... No doubt my learned friend desires now to disconnect them. He wishes as a result of this trial that one should be condemned and the other left free to continue his grand literary career.

Clarke naturally protested, to which Lockwood responded with the words, "My friend hopes to preserve Wilde by means of a false glamour of art". Extraordinarily, Mr. Justice Wills over-ruled Clarke's objection, holding that "So far no mention has been made of the verdict in the other case". What was the jury to suppose when Lockwood told them that Clarke wished that "one should be condemned and the other left free to continue his grand literary career", if it was not impart the fact that another jury had already condemned Taylor?

Lockwood's conduct of the prosecution was, by any standards, a disgrace. Nor was the summing-up, by Mr. Justice Wills, much better; it contrasts poorly with the extremely even-handed summing-up given by Mr. Justice Charles at the first indecency trial. Wills J. allowed himself the luxury of speaking at length, and in a tone of righteous indignation, on matters utterly irrelevant to the issues before the jury. One example has already been mentioned - his observation that: "Lord Queensberry has drawn from these letters [from Wilde to Bosie Douglas] the conclusion that most fathers would draw"; and he went on to describe the correspondence as being "a letter from the prisoner, of which it is difficult for me to speak with calmness, as addressed from one man to another". Referring to the (supposed) gift of a suit of clothes by Douglas to Wood, his Lordship found it "more understandable that a lad like Wood should be give cast-off clothes than cigarette cases". He told the Jury that there is "some truth in the aphorism that a man must be judged by the company he keep", and thought it "remarkable for a man like Mr. Wilde even to foregather with a man of the social position of Wood".

When the Foreman of the Jury enquired as to the position regarding Lord Alfred Douglas - commenting that "if we are to consider these letters as evidence of guilt, and if we adduce any guilt from these letters, it applies as much to Lord Alfred Douglas as to the defendant" - his Lordship reacted with the remarks:

    There is a natural disposition to ask, 'Why should this man stand in the dock, and not Lord Alfred Douglas?' But the supposition that Lord Alfred Douglas will be spared because he is Lord Alfred Douglas is one of the wildest injustice - the thing is utterly and hopelessly impossible.

Dealing with evidence concerning the condition of the bed-linen in Wilde's rooms at the Savoy Hotel, the Judge described it as "a loathsome subject". A possible innocent explanation, offered by the defence, he treated with absolute contempt; referring to "the dirrhoea line of defence", as he was pleased to term it, he said:

    That story, I must say, I am not able to appreciate. I have tried many other similar cases, but I have never heard that before.

His Lordship spoke with vehemence regarding the management of the Savoy Hotel, telling the Jury that:

    I consider that if the housekeeper was informed of the condition of the room, and of the boy having been seen in the bed, and if she yet took no steps to prevent such a thing in the future, she was liable to become an accessory before the fact in the event of it being repeated. It is a condition of things one shudders to contemplate in a first-class hotel. If it can be assumed that such practices could be tolerated with a man who, it seems, was running up a bill of £50 a week, then it will look as if we are coming to a state of society when it will be possible to have a magnificently built place of accommodation [a euphemism for brothel] on the Thames Embankment.

After the Jury returned guilty verdicts on all counts save that relating to Edward Shelley, Mr. Justice Wills proceeded to pass sentence; but he did not miss the opportunity to spew forth another torrent of venom against Wilde and his co-accused. He described the crimes of which they were convicted as being "so bad that one has to put stern restraint upon one's self to prevent one's self from describing, in language which I would prefer not use, the sentiments which must rise in the breast of every man of honour who has heard the details of these two terrible trials"; he expressed the "hope that those who sometimes imagine that a judge is half-hearted in the cause of decency and morality because he takes care no prejudice shall enter into the case, may see that that is consistent at least with the utmost sense of indignation at the horrible charges brought home to both of you"; he opined that it was "no use for me to address you", as "People who can do these things must be dead to all sense of shame, and one cannot hope to produce any effect upon them"; that it was "the worst case I have ever tried"; and that, of the fact that Wilde had been "the centre of a circle of extensive corruption of the most hideous kind among young men", it was "impossible to doubt". His Lordship conceived that he would be "expected to pass the severest sentence that the law allows", but also added that "In my judgement it is totally inadequate for a case such as this".

Much of this was complete twaddle. The truth is that Lord Alfred Douglas did escape prosecution - not, perhaps, because he was Lord Alfred Douglas - but, at any rate, because he was not Oscar Wilde. There was not the slightest basis for suggesting that Wilde ever corrupted any of the young men in respect of whom there was a conviction - all of them, without exception, were male prostitutes, blackmailers, or both - and it might as easily have been said that they corrupted Wilde. From the moment that Lockwood hinted to the Jury that Taylor had already been convicted, the Jury should have been discharged. Perhaps, at a third trial, Wilde might not have escaped the consequences of Lockwood's enthusiasm to achieve a guilty verdict, but he might at least have hoped for a trial as fair as that which he received under Mr. Justice Charles.

Why, it might be wondered, was there this desperate impulse on the part of the government to secure a conviction? In truth, Wilde's conduct harmed nobody but himself. Of the various young men referred to in evidence, all but three chose for themselves a life of prostitution - or, to be fairer to them, were driven to it by social and economic circumstances for which the government had considerably more responsibility than Wilde. Of the other three - Conway, Grainger and Shelley - no charges were preferred in respect of two, and the charge in respect of the third resulted in an acquittal. Any moral sensibilities regarding the fact that Wilde obtained sexual gratification for money were utterly hypocritical, at a time when female prostitution was flourishing on the streets of London, and the only concerted campaign to curb this trade seems to have been the lone efforts of the serial murderer known to history as "Jack the Ripper".

It is possible to attribute much of the anti-Wilde fervour to homophobia, in the sweltering environment of late-Victorian moral pretension. Once again, this was largely hypocritical. As one correspondent wrote to a contemporary newspaper:

    Why does not the Crown prosecute every boy at a public or private school or half the men in the Universities? In the latter places 'poederism' is as common as fornication, and everybody knows it.

Nor is there much to be said for the theory - popular in some American academic circles - that Wilde was persecuted for taking on "The Establishment", in the person of Lord Queensberry. Though a member of the aristocracy, Queensberry was about as unpopular with the government as anyone could be, and not merely as a result of his personal feud with the Prime Minister, Lord Rosebery. When elected as a representative peer for Scotland, he objected to taking the necessary oath as "Christian tomfoolery"; he was outspoken as an atheist; and as a consequence, he could not muster sufficient votes amongst the Scottish aristocracy to retain his seat. His bestial treatment of his first wife - Bosie's mother - became notorious when she divorced him for cruelty. He fought with each of his sons, and on one occasion was arrested and bound over for brawling with Bosie's elder brother (Percy) in the street. His association with prize-fighting was not widely regarded as appropriate to a person of his station. He was notorious throughout London as a brute and a bully, given to offering unprovoked violence of both the verbal and the physical kind. Wilde was not the only man of letters with whom he quarrelled publically: at the performance of a play written by Lord Tennyson (then the Poet Laureate), Queensberry interrupted the proceedings with a diatribe about atheism from his seat in the stalls. He possessed just as many enemies as Wilde, if not more.

Nor, again, can much credence be given to another theory popular in America Academe - that Wilde was persecuted for poking fun at "The Establishment" in his dramatic works. In fact, his plays were fairly main-stream in their social commentary, and far less revolutionary than those of, say, George Bernard Shaw or John Galsworthy. However much Wilde liked to pose as an artist whose dramatic creations occupied a level of intellectual consciousness unattainable by the mundane minds of the ruling classes, the truth is that play-writing was his livelihood; that livelihood depended entirely on the patronage of the middle and upper classes; and Wilde was astute not to bite the hand which fed him. Wilde may have pretended to spurn society, but his own views were echoed in both A Woman of No Importance ("To be in it is merely a bore, but to be out of it is simply a tragedy"), and in The Importance of Being Earnest ("Never speak disrespectfully of Society. Only those who can't get into it do that.").

Wilde's greatest crime was, rather, that he refused to comply with the hypocritical rules by which late-Victorian society conducted itself. There is no doubt that this society included many men of a homosexual disposition - "nature's bachelors" or "spinster gentlemen" - whose inclinations were politely ignored, because they behaved themselves discretely. The discretion expected of them was inconvenient, but pragmatic, involving three basic rules: first, that they should not get caught; secondly, if they were caught, that they should retire abroad for some time; and thirdly, if a major scandal threatened, that they should do the gentlemanly thing and commit suicide. The Bishop of Cloger, discovered in flagrante delicto with a private soldier in the back room of the White Lion Tavern in 1822, had the decency to skip bail and flee the country; the same course was taken in 1841 by William Bankers, Member of Parliament for Dorset, who was apprehended with a soldier in a public lavatory outside Westminster Abbey; and by Lord Arthur Somerset, an officer in the household of the Prince of Wales, who was arrested in 1889 following a police raid on premises in Cleveland Street, frequented by aristocrats for homosexual purposes. The Marquess of Londonderry (better known under his courtesy title as Viscount Castlereagh), when Foreign Minister, adopted the more decisive course of action - as, it is said, did Tchaikowsky, the great Russian composer, when a court of honour comprising members of his former regiment called upon him to do so.

Wilde's arrest evidently reminded many others of their social obligation to make themselves scarce. As Frank Harris wrote in Oscar Wilde, His Life and Confessions:

    The mere news that Oscar Wilde had been arrested ... startled London and gave the signal for a strange exodus. Every train to Dover was crowded; every steamer to Calais thronged with members of the aristocratic and leisured classes, who seemed to prefer Paris, or even Nice out of season, to a city like London, where the police might act with such unexpected vigour. ...

    Never was Paris so crowded with members of the English governing classes; here was to be seen a famous ex-Minister; there the fine face of the president of a Royal society; at one table in the Café de la Paix, a millionaire recently ennobled, and celebrated for his exquisite taste in art; opposite to him a famous general. It was even said that a celebrated English actor took a return ticket for three or four days to Paris, just to be in the fashion.

Wilde was offered every opportunity to withdraw from the United Kingdom. The evening preceding the abandonment of the libel prosecution, he conferred with Clarke. Contrary to the impression given in more than one screenplay, Clarke did not expressly advise Wilde to depart for the Continent - which would not have been entirely proper advice for a lawyer to give - but as Clarke subsequently recorded the details of the conference:

    I advised him in his own interest to allow me to make a statement to the Court, and to withdraw from the prosecution; and I said that, if the case went to its end and the jury found that the accusations were justified, the judge would unquestionably order his arrest. He listened quietly and gravely, and then thanked me for my advice and said he was prepared to act upon it. I then told him that there was no necessity for his presence in Court while the announcement was being made. I hoped and expected that he would take the opportunity of escaping from the country, and I believe he would have found no difficulty in doing so.

Even Queensberry encouraged Wilde to flee, passing a note to him at the conclusion of the libel proceedings, before the papers had been sent to the Director of Prosecutions, reading:

    If the country allows you to leave, all the better for the country; but if you take my son with you, I will follow you wherever you go and shoot you.

An hour and a half before Wilde's arrest, a news reporter called on Wilde at the Cadogan Hotel, and warned him that a warrant had been issued. Wilde did nothing.

Wilde was not granted bail pending the first indecency trial - at which the prosecution, it might be thought, "went soft". But when the first jury disagreed, Wilde was released on bail of £5,000, which was furnished by two sureties - Queensberry's eldest surviving son, Percy, and Rev. Stewart Headlam, an Anglican clergyman entirely unknown to Wilde. We have it on the authority of his junior counsel, Travers Humphreys, that Wilde was discretely informed that his sureties would not suffer if he absconded. His friend, Frank Harris, had arrangements in hand to escape by a private steam yacht; his wife, Constance, and his nearest friends - with the sole exception of his mother - urged him to go. But he refused.

In February of 1895, London celebrated Wilde's genius at the opening of The Importance of Being Earnest. Just three months later, Wilde was utterly destroyed, for no better reason that this: that God, or nature, or whatever it was that gave him an extraordinary talent, chose to invest that talent in a man who (along with between 7% and 15% of the male population) experienced a sexual attraction to other men. Yet this tragedy would never have occurred but for Wilde's own blinding stupidity.

If this is the way Queen Victoria treats her prisoners,
she doesn’t deserve to have any.

- Oscar Wilde,
Wilde’s complaint at having to wait in the rain for transport to take him to prison (attributed)

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Links to other parts of this article

Part I: Wilde and "Bosie" Douglas
Part II: Wilde and Queensberry
Part III: The “booby trap”
Part IV: The perils of litigating a defamation
Part V: Carson’s cross-examination
Part VII: Wilde as a Gay Icon

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Anthony John Hunter Morris QC
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Brisbane, Queensland
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this page last updated 27 January 2004