CHAPTER XLIV

182Du Boys,Histoire du droit criminel de l’Espagne, pp. 93, 403.Les Établissements de Saint Louis, i. 90, vol. ii. 147. Beaumanoir,Coutumes du Beauvoisis, xxx. 11, vol. i. 413. Montesquieu,De l’esprit des lois, xii. 6 (Œuvres, p. 283). Hume,Commentaries on the Law of Scotland, ii. 335; Pitcairn,Criminal Trials in Scotland, ii. 491, n. 2. Clarus,Practica criminalis, book v. § Sodomia, 4 (Opera omnia, ii. 151). Jarcke,Handbuch des gemeinen deutschen Strafrechts, iii. 172sqq.Charles V.’sPeinliche Gerichtsordnung, art. 116. Henke,Geschichte des deutschen peinlichen Rechts, i. 289. Numa Praetorius, ‘Die strafrechtlichen Bestimmungen gegen den gleichgeschlechtlichen Verkehr,’ inJahrbuch für sexuelle Zwischenstufen, i. 124sqq.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 zu einem peinlichen Gesetzbuche für die Chur-Pfalz-Bayrischen Staaten, ii. 13), and in Spain as late as 1843 (Du Boys,op. cit.p. 721).

183Fleta, i. 37. 3, p. 84.

184Britton, i. 10, vol. i. 42.

185Pollock and Maitland,History of English Law before the Time of Edward I.ii. 556sq.

186Coke,Third Part of the Institutes of the Laws of England, p. 58sq.Blackstone,Commentaries on the Laws of England, iv. 218.

187Blackstone,op. cit.iv. 218.

188Stephen,History of the Criminal Law of England, i. 475.

189Blackstone,op. cit.iv. 218.

190Desmaze,Pénalités anciennes, p. 211. Havelock Ellis,op. cit.p. 207.

191Numa Praetorius,loc. cit.p. 121sqq.

192Note of the editors of Kehl’s edition of Voltaire’s ‘Prix de la justice et de l’humanité,’ inŒuvres complètes, v. 437, n. 2.

193Code pénal, 330sqq.Cf.Chevalier,L’inversion sexuelle, p. 431sqq.; Havelock Ellis,op. cit.p. 207sq.

194Numa Praetorius,loc. cit.pp. 131-133, 143sqq.

195See,e.g., Bax,Ethics of Socialism, p. 126.

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 thelarge 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 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;196their 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.

196See also Bastian, inZeitschr. f. Ethnol.i. 88sq.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 (Description 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.

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 relationshipbetween 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.”197But 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.198On 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,199and yet pederasty is remarkably rare among the Hindus. The ancient Arabs were addicted to infanticide,200but not to homosexual love,201whereas 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,202I 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 depopulationof the world must arise, has become and furthered the greatest wish of Aharman.”203I am, however, of opinion that considerations of this kind have generally played only a subordinate, if any, part in the formation of the moral opinions concerning homosexual practices. And it can certainly not be admitted that the severe Jewish law against sodomy was simply due to the fact that the enlargement of the population was a strongly felt social need among the Jews.204However much they condemned celibacy, they did not put it on a par with the abominations of Sodom. The excessive sinfulness which was attached to homosexual love by Zoroastrianism, Hebrewism, and Christianity, had quite a special foundation. It cannot be sufficiently accounted for either by utilitarian considerations or instinctive disgust. The abhorrence of incest is generally a much stronger feeling than the aversion to homosexuality. Yet in the very same chapter of Genesis which describes the destruction of Sodom and Gomorrah we read of the incest committed by the daughters of Lot with their father;205and, according to the Roman Catholic doctrine, unnatural intercourse is an even more heinous sin than incest and adultery.206The fact is that homosexual practices were intimately associated with the gravest of all sins: unbelief, idolatry, or heresy.

197Havelock Ellis,op. cit.p. 206. SeeAdditional Notes.

198Cf.supra,ii. 466(Tahitians).

199Supra,i. 407.

200Supra,i. 406sq.

201von Kremer,Culturgeschichte des Orients, ii. 129.

202Döllinger,op. cit.ii. 239.

203Dâdistân-î Dînîk, lxxvii. 11.

204Havelock Ellis,op. cit.p. 206.

205Genesis, xix. 31sqq.

206Thomas Aquinas,Summa theologica, ii.-ii. 154. 12. Katz,Grundriss des kanonischen Strafrechts, pp. 104, 118, 120. Clarus,Practica criminalis, book v. § Sodomia, Additiones, 1 (Opera omnia, ii. 152):—“Hoc vitium est majus, quam si quis propriam matrem cognosceret.”

According to Zoroastrianism, unnatural sin had been created by Angra Mainyu.207“Aharman, the wicked, miscreated the demons and fiends, and also the remaining corrupted ones, by his own unnatural intercourse.”208Such intercourse is on a par with Afrâsiyâb, a Turanian king who conquered the Iranians for twelve years;209with Dahâk, a king or dynasty who is said to have conquered Yim and reigned for a thousand years;210with Tûr-i Brâdar-vakhsh,a heterodox wizard by whom the best men were put to death.211He who commits unnatural sin is “in his whole being a Daêva”;212and a Daêva-worshipper is not a bad Zoroastrian, but a man who does not belong to the Zoroastrian system, a foreigner, a non-Aryan.213In the Vendîdâd, after the statement that the voluntary commission of unnatural sin is a trespass for which there is no atonement for ever and ever, the question is put, When is it so? And the answer given is:—If the sinner be a professor of the religion of Mazda, or one who has been taught in it. If not, his sin is taken from him, in case he makes confession of the religion of Mazda and resolves never to commit again such forbidden deeds.214This is to say, the sin is inexpiable if it involves a downright defiance of the true religion, it is forgiven if it is committed in ignorance of it and is followed by submission. From all this it appears that Zoroastrianism stigmatised unnatural intercourse as a practice of infidels, as a sign of unbelief. And I think that certain facts referred to above help us to understand why it did so. Not only have homosexual practices been commonly associated with sorcery, but such an association has formed, and partly still forms, an incident of the shamanistic system prevalent among the Asiatic peoples of Turanian stock, and that it did so already in remote antiquity is made extremely probable by statements which I have just quoted from Zoroastrian texts. To this system Zoroastrianism was naturally furiously opposed, and the “change of sex” therefore appeared to the Mazda worshipper as a devilish abomination.

207Vendîdâd, i. 12.

208Dînâ-î Maînôg-î Khirad, viii. 10.

209Sad Dar, ix. 5. West’s note toDînâ-î Maînôg-î Khirad, viii. 29 (Sacred Books of the East, xxiv. 35, n. 4.)

210Sad Dar, ix. 5. West’s note toDînâ-î Maînôg-î Khirad, viii. 29 (Sacred Books of the East, xxiv. 35, n. 3).

211Sad Dar, ix. 5. West’s note toDâdistân-î Dînîk, lxxii. 8 (Sacred Books of the East, xviii. 218).

212Vendîdâd, viii. 32.

213Darmesteter, inSacred Books of the East, iv. p. li.

214Vendîdâd, viii. 27sq.

So also the Hebrews abhorrence of sodomy was largely due to their hatred of a foreign cult. According to Genesis, unnatural vice was the sin of a people who were not the Lord’s people, and the Levitical legislation represents Canaanitish abominations as the chief reasonwhy the Canaanites were exterminated.215Now we know that sodomy entered as an element in their religion. Besidesḳedēshōth, or female prostitutes, there wereḳedēshīm, or male prostitutes, attached to their temples.216The wordḳadēsh, translated “sodomite,” properly denotes a man dedicated to a deity;217and it appears that such men were consecrated to the mother of the gods, the famous Dea Syria, whose priests or devotees they were considered to be.218The male devotees of this and other goddesses were probably in a position analogous to that occupied by the female devotees of certain gods, who also, as we have seen, have developed into libertines; and the sodomitic acts committed with these temple prostitutes may, like the connections with priestesses, have had in view to transfer blessings to the worshippers.219In Morocco supernatural benefits are expected not only from heterosexual, but also from homosexual intercourse with a holy person.220Theḳedēshīmare frequently alluded to in the Old Testament, especially in the period of the monarchy, when rites of foreign origin made their way into both Israel and Judah.221And it is natural that the Yahveh worshipper should regard their practices with the utmost horror as forming part of an idolatrous cult.

215Leviticus, xx. 23.

216Deuteronomy, xxiii. 17. Driver,Commentary on Deuteronomy, p. 264.

217Driver,op. cit.p. 264sq.Selbie, ‘Sodomite,’ in Hastings,Dictionary of the Bible, iv. 559.

218St. Jerome,In Osee, i. 4. 14 (Migne,op. cit.xxv. 851). Cook’s note to1 Kings, xiv. 24, in his edition ofThe Holy Bible, ii. 571. See also Lucian,Lucius, 38.

219Rosenbaum suggests (Geschichte der Lustseuche im Alterthume, p. 120) that the eunuch priests connected with the cult of the Ephesian Artemis and the Phrygian worship of Cybele likewise were sodomites.

220See Westermarck,The Moorish Conception of Holiness, p. 85.

2211 Kings, xiv. 24; xv. 12; xxii. 46.2 Kings, xxiii. 7.Job, xxxvi. 14. Driver,op. cit.p. 265.

The Hebrew conception of homosexual love to some extent affected Muhammedanism, and passed into Christianity. The notion that it is a form of sacrilege was here strengthened by the habits of the gentiles. St. Paul found the abominations of Sodom prevalent among nations who had “changed the truth of God into a lie, and worshipped and served the creature more than theCreator.”222During the Middle Ages heretics were accused of unnatural vice as a matter of course.223Indeed, so closely was sodomy associated with heresy that the same name was applied to both. In ‘La Coutume de Touraine-Anjou’ the wordherite, which is the ancient form ofhérétique,224seems to be used in the sense of “sodomite”;225and the Frenchbougre(from the LatinBulgarus, Bulgarian), as also its English synonym, was originally a name given to a sect of heretics who came from Bulgaria in the eleventh century, and was afterwards applied to other heretics, but at the same time it became the regular expression for a person guilty of unnatural intercourse.226In mediæval laws sodomy was also repeatedly mentioned together with heresy, and the punishment was the same for both.227It thus remained a religious offence of the first order. It was not only a “vitium nefandum et super omnia detestandum,”228but it was one of the four “clamantia peccata,” or crying sins,229a “crime de Majestie, vers le Roy celestre.”230Very naturally, therefore, it has come to be regarded with somewhat greater leniency by law and public opinion in proportion as they have emancipated themselves from theological doctrines. And the fresh light which the scientific study of the sexual impulse has lately thrown upon the subject of homosexuality must also necessarily influence the moral ideas relating to it, in so far as no scrutinising judge can fail to take into account the pressure which a powerful non-volitional desire exercises upon an agent’s will.

222Romans, i. 25sqq.

223Littré,Dictionnaire de la langue française, i. 386, ‘Bougre.’ Haynes,Religious Persecution, p. 54.

224Littré,op. cit.i. 2010, ‘Hérétique.’

225Les Établissements de Saint Louis, i. 90, vol. ii. 147. Viollet, in his Introduction to the same work, i. 254.

226Littré,op. cit.i. 386, ‘Bougre.’ Murray,New English Dictionary, i. 1160, ‘Bugger.’ Lea,History of the Inquisition of the Middle Ages, i. 115, note.

227Beaumanoir,Coutumes du Beauvoisis, xxx. 11, vol. i. 413:—“Qui erre contre le foi, comme en mescreance, de le quele il ne veut venir à voie de verité, ou qui fet sodomiterie, il doit estre ars, et forfet tout le sien en le maniere dessus.” Britton, i. 10, vol. i. 42. Montesquieu,De l’esprit des lois, xii. 6 (Œuvres, p. 283). Du Boys,Histoire du droit criminel de l’Espagne, pp. 486, 721.

228Clarus,Practica criminalis, book v. § Sodomia, 1 (Opera omnia, ii. 151).

229Coke,Third Part of the Institutes of the Laws of England, p. 59.

230Mirror, quotedibid.p. 58.

MEN’Sconduct towards the lower animals is frequently a subject of moral valuation.

Totem animals must be treated with deference by those who bear their names, and animals generally regarded as divine must be respected by all; of this more will be said in a subsequent chapter.1Among various peoples the members of certain animal species must not be killed, because they are considered to be receptacles for the souls of departed men,2or because the species is believed to have originated through a transformation of men into animals.3The Dyaks of Borneo have a superstitious dread of killing orang-utans, being of opinion that these apes are men who went to live in the forest and abstain from speaking merely in order to be exempt from paying taxes.4The Moors consider it wrong to kill a monkey, because the monkey was once a man whom God changed into his present shape as a punishment for the sin he committed by performing his ablutions with milk; and they would never do harm to a stork, because, as they say, the stork was originally a judge, who passed unjust sentences upon his fellow creatures and therefore became what he is. They also account it a sin to kill a swallow or a pigeon, a white spider or a bee, because they regard them as holy. Other creatures, again, are spared by the Moors because theyappear uncanny or are suspected of being evil spirits in disguise. It is believed that anybody who kills a raven easily goes mad and that he who kills a toad will get fever or die; and no Moor would dare to hit a cat or a dog in the dark, since it seems very doubtful what kind of being it really is. Superstitions of this sort are world-wide.

1Infra, onDuties to Gods.

2Infra,p. 516sq.

3See Meiners,Allgemeine Geschichte der Religionen, i. 213sqq.

4Selenka,Sonnige Welten, p. 57.

It is a common belief among uncultured peoples that a person who slays an animal is exposed to the vengeance either of its disembodied spirit or of all the other creatures belonging to the same species.5Hence, as Sir J. G. Frazer has shown, the savage often makes it a rule to spare the lives of those animals which he has no pressing motive for killing, at least such fierce and dangerous ones as are likely to exact a bloody revenge for the slaughter of any of their kind; and when, for some reason or other, he overcomes his superstitious scruples and takes the life of the beast, he is anxious to appease the victim and its kindred by testifying his respect for them, or making apologies, or trying to conceal his share in procuring the death of the animal, or promising that its remains will be honourably treated.6The Stiêns of Cambodia, for instance, who believe that animals have souls which wander about after death, ask pardon when they have killed one, lest its soul should visit and torment them; and they also offer it sacrifices proportioned to the strength and size of the animal.7When a party of Koriaks have killed a bear or a wolf, they skin the beast, dress one of their family in the skin, and dance round the skin-clad man, saying that it was not they who killed the animal but someone else, by preference a Russian.8The Eskimo about Behring Strait maintain that the dead bodies of various animals must be treated very carefully by the hunter who obtains them, so that their shades may not be offended and bring bad luck or even death upon him or his people.9

5Supra,i. 258.

6Frazer,Golden Bough, ii. 389sqq.

7Mouhot,Travels in the Central Parts of Indo-China, i. 252.

8Bastian,Der Mensch in der Geschichte, iii. 26.

9Nelson, ‘Eskimo about Bering Strait,’ inAnn. Rep. Bur. Ethn.xviii. 438.

The savage, moreover, desires to keep on good terms with animals which, without being feared, are either eaten or valued for their skins. Hence, when he captures one, he shows such deference for it as may be necessary for inducing its fellows to come and be killed also.10Alaskan hunters preserve the bones of sables and beavers out of reach of the dogs for a year and then bury them carefully, lest the spirits which look after these species should consider that “they are regarded with contempt and hence no more should be killed or trapped.”11The Thompson River Indians of British Columbia said that when a deer was killed its fellows would be well pleased if the hunters butchered the animal nicely and cleanly.12The Hurons refrained from throwing fish bones into the fire, lest the souls of the fish should go and warn the other fish not to let themselves be caught, since, if they were, their own bones would also be burned.13Some savages respect the bones of the animals which they eat because they believe that the bones, if preserved, will, in the course of time, be reclothed with flesh and the animal thus come to life again.14

10Frazer,op. cit.ii. 403sqq.

11Dall,Alaska, p. 89.

12Teit, ‘Thompson Indians of British Columbia,’ inMemoirs of the American Museum of Natural History, ‘Anthropology,’ i. 346.

13Sagard,Le grand voyage du pays des Hurons, p. 255.

14Frazer,op. cit.ii. 415sqq.

Besides the creatures which primitive man treats with respect because he dreads their strength and ferocity or on account of the benefits he expects from them, there is yet a third class of animate beings which he sometimes deems it necessary to conciliate, namely, vermin that infest the crops.15Among the Saxons of Transylvania, in order to keep sparrows from the corn, the sower begins by throwing the first handful of seed backwards over his head, saying, “That is for you, sparrows.”16And of the Drâvidian tribes of Mirzapur we are told that, when locusts threaten to eat up the fruits of the earth, the people catch one, decorate its head with a spot of redlead, salaam to it, and let it go; after which civilities the whole flight immediately departs.17

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