Chapter 120

109Junghuhn,op. cit.ii. 157, n.

110Schwaner,op. cit.i. 186.

111Ellis,Polynesian Researches, i. 258.Cf.Moerenhout,Voyages aux îles du Grand Océan, ii. 167sq.

112de Flacourt,op. cit.p. 86.

113Walter, in Steinmetz,Rechtsverhältnisse, p. 376.

114Veniaminof, quoted by Petroff,Report on Alaska, p. 158.

115Ibid.p. 158:—“The offender desirous of unburdening himself selected a time when the sun was clear and unobscured; he picked up certain weeds and carried them about his person; then deposited them and threw his sin upon them, calling the sun as a witness, and, when he had eased his heart of all that had weighed upon it, he threw the grass or weeds into the fire, and after that considered himself cleansed of his sin.”

116Davydow, quoted by Holmberg,loc. cit.p. 400sq.Lisianski,op. cit.p. 199.

117Bogoraz, quoted by Demidoff,op. cit.p. 75. Jochelson,op. cit.p. 52sq.

118Marquette,op. cit.p. 53sq.

119Catlin,North American Indians, ii. 214sq.

120‘La Salle’s Last Expedition in North America,’ inCollections of the New-York Historical Society, ii. 238 (Illinois). Perrin du Lac,Voyage dans les deux Louisianes et chez les nations sauvages du Missouri, p. 352. Bossu,op. cit.i. 303 (Chactaws). Oviedo y Valdés,loc. cit.p. 508 (Isthmians). von Martius,Von dem Rechtszustande unter den Ureinwohnern Brasiliens, p. 28 (Guaycurús).

121Cieza de Leon,Segunda parte de Crónica del Perú, ch. 25, p. 99. See alsoIdem,Crónica del Perú [primera parte], ch. 64 (Biblioteca de autores españoles, xxvi. 416sq.).

122Idem,Segunda parte de Crónica del Perú, ch. 25, p. 98. See also Garcilasso de la Vega,op. cit.ii. 132.

123Las Casas, quoted by Bancroft,op. cit.ii. 467sq.Cf.ibid.ii. 677.

124Clavigero,History of Mexico, i. 357.

125Squier, ‘Archæology and Ethnology of Nicaragua,’ inTrans. American Ethn. Soc.iii. pt. i. 128.

126Bancroft,op. cit.ii. 677.

127Piedrahita,Historia general de las conquistas del nuevo reyno de Granada, p. 46.

128Seesupra,i. 186,195.

Homosexual practices are said to be taken little notice of even by some uncivilised peoples who are not addicted to them. In the Pelew Islands, where such practices occur only sporadically, they are not punished, although, if I understand Herr Kubary rightly, the persons committing them may be put to shame.129The Ossetes of the Caucasus,among whom pederasty is very rare, do not generally prosecute persons for committing it, but ignore the act.130The East African Masai do not punish sodomy.131But we also meet with statements of a contrary nature. In a Kafir tribe Mr. Warner heard of a case of it—the only one during a residence of twenty-five years—which was punished with a fine of some cattle claimed by the chief.132Among the Ondonga pederasts are hated, and the men who behave like women are detested, most of them being wizards.133The Washambala consider pederasty a grave moral aberration and subject it to severe punishment.134Among the Waganda homosexual practices, which have been introduced by the Arabs and are of rare occurrence, “are intensely abhorred,” the stake being the punishment.135The Negroes of Accra, who are not addicted to such practices, are said to detest them.136In Nubia pederasty is held in abhorrence, except by the Kashefs and their relations, who endeavour to imitate the Mamelukes in everything.137

129Kubary, ‘Die Verbrechen und das Strafverfahren auf den Pelau-Inseln,’ inOriginal-Mittheilungen aus der ethnologischen Abtheilung der königlichen Museen zu Berlin, i. 84.

130Kovalewsky,Coutume contemporaine, p. 340.

131Merker,Die Masai, p. 208. The Masai, however, slaughter at once any bullock or he-goat which is noticed to practise unnatural intercourse, for fear lest otherwise their herds should be visited by a plague as a divine punishment (ibid.p. 159).

132Warner, in Maclean,Compendium of Kafir Laws, p. 62.

133Rautanen, in Steinmetz,Rechtsverhältnisse, p. 333sq.

134Lang,ibid.p. 232.

135Felkin, inProceed. Roy. Soc. Edinburgh, xiii. 723.

136Monrad,op. cit.p. 57.

137Burckhardt,Travels in Nubia, p. 135.

Muhammed forbade sodomy,138and the general opinion of his followers is that it should be punished like fornication—for which the punishment is, theoretically, severe enough139—unless the offenders make a public act of penitence. In order to convict, however, the law requires that four reliable persons shall swear to have been eye-witnesses,140and this alone would make the law a dead letter, even if it had the support of popular feelings; but such support is certainly wanting. In Morocco activepederasty is regarded with almost complete indifference, whilst the passive sodomite, if a grown-up individual, is spoken of with scorn. Dr. Polak says the same of the Persians.141In Zanzibar a clear distinction is made between male congenital inverts and male prostitutes; the latter are looked upon with contempt, whereas the former, as being what they are “by the will of God,” are tolerated.142The Muhammedans of India and other Asiatic countries regard pederasty, at most, as a mere peccadillo.143Among the Hindus it is said to be held in abhorrence,144but their sacred books deal with it leniently. According to the ‘Laws of Manu,’ “a twice-born man who commits an unnatural offence with a male, or has intercourse with a female in a cart drawn by oxen, in water, or in the day-time, shall bathe, dressed in his clothes”; and all these are reckoned as minor offences.145

138Koran, iv. 20.

139Sachau,Muhammedanisches Recht nach Schafiitischer Lehre, pp. 809, 818:—“Sodomita simuḥṣan(that is, a married person in possession of full civic rights) est punitur lapidatione, si non estmuḥṣanpunitur et flagellatione et exsilio.”

140Burton,Arabian Nights, x. 224.

141Polak, inWiener Medizinische Wochenschrift, xi. 628sq.

142Baumann, inVerhandl. Berliner Gesellsch. Anthrop.1899, p. 669.

143Chevers,op. cit.p. 708. Burton,Arabian Nights, x. 222sqq.

144Burton,Arabian Nights, x. 237.

145Laws of Manu, xi. 175.Cf.Institutes of Vishnu, liii. 4;Âpastamba, i. 9. 26. 7;Gautama, xxv. 7.

Chinese law makes little distinction between unnatural and other sexual offences. An unnatural offence is variously considered according to the age of the patient, and whether or not consent was given. If the patient be an adult, or a boy over the age of twelve, and consent, the case is treated as a slightly aggravated form of fornication, both parties being punished with a hundred blows and one month’s cangue, whilst ordinary fornication is punished with eighty blows. If the adult or boy over twelve resist, the offence is considered as rape; and if the boy be under twelve, the offence is rape irrespective of consent or resistance, unless the boy has previously gone astray.146But, as a matter of fact, unnatural offences are regarded as less hurtful to the community than ordinary immorality,147and pederasty is not looked down upon. “L’opinion publique reste tout à fait indifférente à ce genre de distraction et lamorale ne s’en émeut en rien: puisque cela plaît à l’opérateur et que l’opéré est consentant, tout est pour le mieux; la loi chinoise n’aime guère à s’occuper des affaires trop intimes. La pédérastie est même considérée comme une chose de bon ton, une fantaisie dispendieuse et partout un plaisir élégant…. La pédérastie a une consécration officielle en Chine. Il existe, en effet, des pédérés pour l’Empereur.”148Indeed, the only objection which Dr. Matignon has heard to be raised to pederasty by public opinion in China is that it has a bad influence on the eyesight.149In Japan there was no law against homosexual intercourse till the revolution of 1868.150In the period of Japanese chivalry it was considered more heroic if a man loved a person of his own sex than if he loved a woman; and nowadays people are heard to say that in those provinces of the country where pederasty is widely spread the men are more manly and robust than in those where it does not prevail.151

146Alabaster,Notes and Commentaries on Chinese Criminal Law, p. 367sqq.Ta Tsing Leu Lee, Appendix, no. xxxii. p. 570.

147Alabaster,op. cit.p. 369.

148Matignon, inArchives d’anthropologie criminelle, xiv. 42, 43, 52.

149Ibid.p. 44.

150Karsch,op. cit.p. 99.

151Jwaya, inJahrbuch für sexuelle Zwischenstufen, iv. 266, 270sq.

The laws of the ancient Scandinavians ignored homosexual practices; but passive pederasts were much despised by them. They were identified with cowards and regarded as sorcerers. The epithets applied to them—argr,ragr,blandr, and others assumed the meaning of “poltroon” in general, and there are instances of the wordargbeing used in the sense of “practising witchcraft.” This connection between pederasty and sorcery, as a Norwegian scholar justly points out, helps us to understand Tacitus’ statement that among the ancient Teutons individuals whom he describes ascorpore infameswere buried alive in a morass.152Considering that drowning was a common penalty for sorcery, it seems probable that this punishment was inflicted upon them not, in the first place, on account of their sexual practices, but in their capacity of wizards. It is certain that the opprobrium which the pagan Scandinavians attached to homosexual love was chiefly restricted to him who played the woman’s part. In one of the poemsthe hero even boasts of being the father of offspring borne by another man.153

152Tacitus,Germania, 12.

153‘Spuren von Konträrsexualität bei den alten Skandinaviern (Mitteilungen eines norwegischen Gelehrten),’ inJahrbuch für sexuelle Zwischenstufen, iv. 245, 256sqq.

In Greece pederasty in its baser forms was censured, though generally, it seems, with no great severity, and in some states it was legally prohibited.154According to an Athenian law, a youth who prostituted himself for money lost his rights as a free citizen and was liable to the punishment of death if he took part in a public feast or entered theagora.155In Sparta it was necessary that the “listener” should accept the “inspirator” from real affection; he who did so out of pecuniary considerations was punished by the ephors.156We are even told that among the Spartans the relations between the lover and his friend were truly innocent, and that if anything unlawful happened both must forsake either their country or their lives.157But the universal rule in Greece seems to have been that when decorum was observed in the friendship between a man and a youth, no inquiries were made into the details of the relationship.158And this attachment was not only regarded as permissible, but was praised as the highest and purest form of love, as the offspring of the heavenly Aphrodite, as a path leading to virtue, as a weapon against tyranny, as a safeguard of civic liberty, as a source of national greatness and glory. Phaedrus said that he knew no greater blessing to a young man who is beginning life than a virtuous lover, or to the lover than a beloved youth; for the principle which ought to be the guide of men who would lead a noble life cannot be implanted by any other motive so well as by love.159The Platonic Pausanias argued that if love of youths is held in ill repute it is so only because it is inimical to tyranny; “the interests of rulers require that their subjects shouldbe poor in spirit, and that there should be no strong bond of friendship or society among them, which love, above all other motives, is likely to inspire.”160The power of the Athenian tyrants was broken by the love of Aristogeiton and the constancy of Harmodius; at Agrigentum in Sicily the mutual love of Chariton and Melanippus produced a similar result; and the greatness of Thebes was due to the Sacred Band established by Epaminondas. For “in the presence of his favourite, a man would choose to do anything rather than to get the character of a coward.”161It was pointed out that the greatest heroes and the most warlike nations were those who were most addicted to the love of youths;162and it was said that an army consisting of lovers and their beloved ones, fighting at each other’s side, although a mere handful, would overcome the whole world.163

154Xenophon,Lacedæmoniorum respublica, ii. 13. Maximus Tyrius,Dissertationes, xxv. 4; xxvi. 9.

155Aeschines,Contra Timarchum, 21.

156Aelian,Varia historia, iii. 10.Cf.Plato,Leges, viii. 910.

157Aelian,op. cit.iii. 12.Cf.Maximus Tyrius,op. cit.xxvi. 8.

158Cf.Symonds,loc. cit.p. 92sqq.

159Plato,Symposium, p. 178.

160Plato,Symposium, p. 182.

161Hieronymus, the Peripatetic, referred to by Athenaeus,op. cit.xiii. 78, p. 602. See also Maximus Tyrius,op. cit.xxiv. 2.

162Plutarch,Amatorius, xvii. 14.

163Plato,Symposium, p. 178.

Herodotus asserts that the love of boys was introduced from Greece into Persia.164Whether his statement be correct or not, such love could certainly not have been a habit of the Mazda worshippers.165In the Zoroastrian books “unnatural sin” is treated with a severity to which there is a parallel only in Hebrewism and Christianity. According to the Vendîdâd, there is no atonement for it.166It is punished with torments in the other world, and is capital here below.167Even he who committed it involuntarily, by force, is subject to corporal punishment.168Indeed, it is a more heinous sin than the slaying of a righteous man.169“There is no worse sin than this in the good religion, and it is proper to call those who commit it worthy of death in reality. If any one comes forth to them, and shall seethem in the act, and is working with an axe, it is requisite for him to cut off the heads or to rip up the bellies of both, and it is no sin for him. But it is not proper to kill any person without the authority of high-priests and kings, except on account of committing or permitting unnatural intercourse.”170

164Herodotus, i. 135.

165Ammianus Marcellinus says (xxiii. 76) that the inhabitants of Persia were free from pederasty. But see also Sextus Empiricus,Pyrrhoniæ hypotyposes, i. 152.

166Vendîdâd, i. 12; viii. 27.

167Darmesteter, inSacred Books of the East, iv. p. lxxxvi.

168Vendîdâd, viii. 26.

169Dînâ-î Maînôg-î Khirad, xxxvi. 1sqq.

170Sad Dar, ix. 2,sqq.

Nor are unnatural sins allowed to defile the land of the Lord. Whosoever shall commit such abominations, be he Israelite or stranger dwelling among the Israelites, shall be put to death, the souls that do them shall be cut off from their people. By unnatural sins of lust the Canaanites polluted their land, so that God visited their guilt, and the land spued out its inhabitants.171

171Leviticus, xviii. 22, 24sqq.; xx. 13.

This horror of homosexual practices was shared by Christianity. According to St. Paul, they form the climax of the moral corruption to which God gave over the heathen because of their apostasy from him.172Tertullian says that they are banished “not only from the threshold, but from all shelter of the church, because they are not sins, but monstrosities.”173St. Basil maintains that they deserve the same punishment as murder, idolatry, and witchcraft.174According to a decree of the Council of Elvira, those who abuse boys to satisfy their lusts are denied communion even at their last hour.175In no other point of morals was the contrast between the teachings of Christianity and the habits and opinions of the world over which it spread more radical than in this. In Rome there was an old law of unknown date, called Lex Scantinia (or Scatinia), which imposed a mulct on him who committed pederasty with a free person;176but this law, of whichvery 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.177But 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.178Valentinian went further still and ordered that those who were found guilty of it should be burned alive in the presence of all the people.179Justinian, 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.180“A 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.”181

172Romans, i. 26sq.

173Tertullian,De pudicitia, 4 (Migne,Patrologiæ cursus, ii. 987).

174St. Basil, quoted by Bingham,Works, vi. 432sq.

175Concilium Eliberitanum, ch. 71 (Labbe-Mansi,Sacrorum Conciliorum collectio, ii. 17).

176Juvenal,Satiræ, ii. 43sq.Valerius Maximus,Facta dictaque memorabilia, vi. 1. 7. Quintilian,Institutio oratoria, iv. 2. 69:—“Decem milia, quae poena stupratori constituta est, dabit.” Christ,Hist. Legis Scatiniæ, quoted by Döllinger,op. cit.ii. 274. Rein,Criminalrecht der Römer, p. 865sq.Bingham,op. cit.vi. 433sqq.Mommsen,Römisches Strafrecht, p. 703sq.

177Mommsen,op. cit.p. 704. Rein,op. cit.p. 866. The passage inDigesta, xlviii. 5. 35. 1, refers tostuprumindependently of the sex of the victim.

178Codex Theodosianus, ix. 7. 3.Codex Justinianus, ix. 9. 30.

179Codex Theodosianus, ix. 7. 6.

180Novellæ, 77. See alsoibid.141, andInstitutiones, iv. 18. 4.

181Gibbon,History of the Decline and Fall of the Roman Empire, v. 323.

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.182In England Fletaspeaks of the offender being buried alive;183but we are elsewhere told that burning was the due punishment.184As 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.185It was said that the punishment for this crime—which the English law, in its very indictments, treats as a crime not fit to be named186—was determined to be capital by “the voice of nature and of reason, and the express law of God”;187and it remained so till 1861,188although in practice the extreme punishment was not inflicted.189In France persons were actually burned for this crime in the middle and latter part of the eighteenth century.190But in this, as in so many other respects, the rationalistic movement of that age brought about a change.191To 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.192This 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 absolutelyunpunished. 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.193This method of dealing with homosexuality has been followed by the legislators of various European countries,194and in those where the law still treats the act in questionper seas 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.195

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