very little is known, had lain dormant for ages, and the subject of ordinary homosexual intercourse had never afterwards attracted the attention of the pagan legislators.' But when Christianity became the religion of the Roman Empire, a veritable crusade was opened against it. Constantius and Constans made it a capital crime, punishable with the sword. Valentinian went further still and ordered that those who were found guilty of it should be burned alive in the presence of all the people.3 Justinian, terrified by certain famines, earthquakes, and pestilences, issued an edict which again condemned persons guilty of unnatural offences to the sword, "lest, as the result of these impious acts, whole cities should perish together with their inhabitants, as we are taught by Holy Scripture that through such acts cities have perished with the men in them.* sentence of death and infamy," says Gibbon, "was often founded on the slight and suspicious evidence of a child or a servant, . . . and pederasty became the crime of those to whom no crime could be imputed.' "5 "A This attitude towards homosexual practices had a profound and lasting influence on European legislation. Throughout the Middle Ages and later, Christian lawgivers thought that nothing but a painful death in the flames could atone for the sinful act. In England Fleta 1 Mommsen, op. cit. p. 704. Rein, op. cit. p. 866. The passage in Digesta, xlviii. 5. 35. 1, refers to stuprum independently of the sex of the victim. 2 Codex Theodosianus, ix. 7. 3. Codex Justinianus, ix. 9. 30. 3 Codex Theodosianus, ix. 7. 6. 4 Novelle, 77. See also ibid. 141, and Institutiones, iv. 18. 4. 5 Gibbon, History of the Decline and Fall of the Roman Empire, v. 323. 6 Du Boys, Histoire du droit criminel de l'Espagne, pp. 93, 403. Les Etablissements de Saint Louis, i. 90, vol. ii. 147. Beaumanoir, Coutumes du Beauvoisis, XXX. II, vol. i. 413. Montesquieu, De l'esprit des lois, xii. 6 (Euvres, p. 283). Hume, Commentaries on the Law of Scotland, ii. 335; Pitcairn, Criminal Trials in Scotland, VOL. II ii. 491, n. 2. Clarus, Practica criminalis, book v. § Sodomia, 4 (Opera omnia, ii. 151). Jarcke, Handbuch des gemeinen deutschen Strafrechts, iii. 172 sqq. Charles V.'s Peinliche Gerichtsordnung, art. 116. Henke, Geschichte des deutschen peinlichen Rechts, i. 289. Numa Praetorius, Die strafrechtlichen Bestimmungen gegen den gleichgeschlechtlichen Verkehr,' in Jahrbuch für sexuelle Zwischenstufen, i. 124 sqq. In the beginning of the nineteenth century sodomy was still nominally subject to capital punishment by burning in Bavaria (von Feuerbach, Kritik des Kleinschrodischen Entwurfs su einem peinlichen Gesetzbuche für die Chur-Pfalz-Bayrischen Staaten, ii. 13), and in Spain as late as 1843 (Du Boys, op. cit. p. 721). I I 3 4 1 speaks of the offender being buried alive; but we are elsewhere told that burning was the due punishment." As unnatural intercourse, however, was a subject for ecclesiastical cognizance, capital punishment could not be inflicted on the criminal unless the Church relinquished him to the secular arm; and it seems very doubtful whether she did relinquish him. Sir Frederick Pollock and Professor Maitland consider that the statute of 1533, which makes sodomy felony, affords an almost sufficient proof that the temporal courts had not punished it, and that no one had been put to death for it for a very long time past. It was said that the punishment for this crime -which the English law, in its very indictments, treats as a crime not fit to be named -was determined to be capital by "the voice of nature and of reason, and the express law of God"; and it remained so till 1861, although in practice the extreme punishment was not inflicted. France persons were actually burned for this crime in the middle and latter part of the eighteenth century. But in this, as in so many other respects, the rationalistic movement of that age brought about a change." To punish sodomy with death, it was said, is atrocious; when unconnected with violence, the law ought to take no notice of it at all. It does not violate any other person's right, its influence on society is merely indirect, like that of drunkenness and free love; it is a disgusting vice, but its only proper punishment is contempt. This view was adopted by the French Code pénal,' according to which homosexual practices in private, between two consenting adult parties, whether men or women, are absolutely un 5 1 Fleta, i. 37. 3, p. 84. 2 Britton, i. 10, vol. i. 42. 3 Pollock and Maitland, History of English Law before the Time of Edward I. ii. 556 sq. Coke, Third Part of the Institutes of the Laws of England, p. 58 sq. Blackstone, Commentaries on the Laws of England, iv. 218. 5 Blackstone, op. cit. iv. 218. 10 Law of England, i. 475. 7 Blackstone, op. cit. iv. 218. In 8 Desmaze, Pénalités anciennes, p. 211. Havelock Ellis, op. cit. p. 207. 9 Numa Praetorius, loc. cit. p. 121 sqq. To Note of the editors of Kehl's edition of Voltaire's Prix de la justice et de l'humanité,' in Euvres complètes, v. 437, n. 2. punished. The homosexual act is treated as a crime only when it implies an outrage on public decency, or when there is violence or absence of consent, or when one of the parties is under age or unable to give valid consent.1 This method of dealing with homosexuality has been followed by the legislators of various European countries,2 and in those where the law still treats the act in question per se as a penal offence, notably in Germany, a propaganda in favour of its alteration is carried on with. the support of many men of scientific eminence. This changed attitude of the law towards homosexual intercourse undoubtedly indicates a change of moral opinions. Though it is impossible to measure exactly the degree of moral condemnation, I suppose that few persons nowadays attach to it the same enormity of guilt as did our forefathers. And the question has even been put whether morality has anything at all to do with a sexual act, committed by the mutual consent of two adult individuals, which is productive of no offspring, and which on the whole concerns the welfare of nobody but the parties themselves.3 From this review of the moral ideas on the subject, incomplete though it be, it appears that homosexual practices are very frequently subject to some degree of censure, though the degree varies extremely. This censure is no doubt, in the first place, due to that feeling of aversion or disgust which the idea of homosexual intercourse tends to call forth in normally constituted adult individuals whose sexual instincts have developed under normal conditions. I presume that nobody will deny the general prevalence of such a tendency. It corresponds to that instinctive repugnance to sexual connections with women which is so frequently found in congenital inverts; whilst that particular form of it with which legislators have chiefly busied themselves evokes, in addition, a physical disgust of its own. And in a society where the large 1 Code pénal, 330 sqq. Cf. Chevalier, L'inversion sexuelle, p. 431 sqq.; Havelock Ellis, op. cit. p, 207 sq. 2 Numa Praetorius, loc. cit. pp. 131-133, 143 sqq. 3 See, e.g., Bax, Ethics of Socialism, P. 126. majority of people are endowed with normal sexual desires their aversion to homosexuality easily develops into moral censure and finds a lasting expression in custom, law, or religious tenets. On the other hand, where special circumstances have given rise to widely spread homosexual practices, there will be no general feeling of disgust even in the adults, and the moral opinion of the society will be modified accordingly. The act may still be condemned, in consequence of a moral doctrine formed under different conditions, or of the vain attempts of legislators to check sexual irregularities, or out of utilitarian considerations; but such a condemnation would in most people be rather theoretical than genuine. At the same time the baser forms of homosexual love may be strongly disapproved of for the same reasons as the baser forms of intercourse between men and women; and the passive pederast may be an be an object of contempt on account of the feminine practices to which he lends himself, as also an object of hatred on account of his reputation for sorcery. We have seen that the effeminate men are frequently believed to be versed in magic; their abnormalities readily suggest that they are endowed with supernatural power, and they may resort to witchcraft as a substitute for their lack of manliness and physical strength. But the supernatural qualities or skill in magic ascribed to men who behave like women may also, instead of causing hatred, make them honoured or reverenced. It has been suggested that the popular attitude towards homosexuality was originally an aspect of economics, a question of under- or over-population, and that it was forbidden or allowed accordingly. Dr. Havelock Ellis thinks it probable that there is a certain relationship 1 See also Bastian, in Zeitschr. f. Ethnol. i. 88 sq. Speaking of the witches of Fez, Leo Africanus says (History and Description of Africa, ii. 458) that "they haue a damnable custome to commit vnlawfull Venerie among themselues." Among the Patagonians, according to Falkner (Descrip tion of Patagonia, p. 117), the male wizards are chosen for their office when they are children, and "a preference is always shown to those who at that early time of life discover an effeminate disposition." They are obliged, as it were, to leave their sex, and to dress themselves in female apparel. 4 8 between the social reaction against homosexuality and against infanticide:-"Where the one is regarded leniently and favourably, there generally the other is also; where the one is stamped out, the other is usually stamped out." But our defective knowledge of the opinions of the various savage races concerning homosexuality hardly warrants such a conclusion; and if a connection really does exist between homosexual practices and infanticide it may be simply due to the numerical disproportion between the sexes resulting from the destruction of a multitude of female infants. On the other hand we are acquainted with several facts which are quite at variance with Dr. Ellis's suggestion. Among many Hindu castes female infanticide has for ages been a genuine custom, and yet pederasty is remarkably rare among the Hindus. The ancient Arabs were addicted to infanticide, but not to homosexual love," whereas among modern Arabs the case is exactly the reverse. And if the early Christians deemed infanticide and pederasty equally heinous sins, they did so certainly not because they were anxious that the population should increase; if this had been their motive they would hardly have glorified celibacy. It is true that in a few cases the unproductiveness of homosexual love has been given by indigenous writers as a reason for its encouragement or condemnation. It was said that the Cretan law on the subject had in view to check the growth of population; but, like Döllinger," I do not believe that this assertion touches the real root of the matter. More importance may be attached to the following passage in one of the Pahlavi texts :-" He who is wasting seed makes a practice of causing the death of progeny; when the custom is completely continuous, which produces an evil stoppage of the progress of the race, the creatures have become annihilated; and certainly, that action, from which, when it is universally proceeding, the depopulation 1 Havelock Ellis, op. cit. p. 206. 2 Cf. supra, ii. 466 (Society Islanders). 3 Supra, i. 407. 4 Supra, i. 406 sq. 5 von Kremer, Culturgeschichte des Orients, ii. 129. Döllinger, op. cit. ii. 239. 6 |