[173] Tertullian, De pudicitia, 4 (Migne, Patrologiæ cursus, ii. 987).
[174] St. Basil, quoted by Bingham, Works, vi. 432 sq.
[175] Concilium Eliberitanum, ch. 71 (Labbe-Mansi, Sacrorum Conciliorum collectio, ii. 17).
[176] Juvenal, Satiræ, ii. 43 sq. 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. 865 sq. Bingham, op. cit. vi. 433 sqq. Mommsen, Römisches Strafrecht, p. 703 sq.
[177] 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.
[178] Codex Theodosianus, ix. 7. 3. Codex Justinianus, ix. 9. 30.
[179] Codex Theodosianus, ix. 7. 6.
[180] Novellæ, 77. See also ibid. 141, and Institutiones, iv. 18. 4.
[181] Gibbon, 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.[182] In England Fleta speaks of the offender being buried alive;[183] but we are elsewhere told that burning was the due punishment.[184] 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.[185] 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[186]—was determined to be capital by “the voice of nature and of reason, and the express law of God”;[187] and it remained so till 1861,[188] although in practice the extreme punishment was not inflicted.[189] In France persons were actually burned for this crime in the middle and latter part of the eighteenth century.[190] But in this, as in so many other respects, the rationalistic movement of that age brought about a change.[191] 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.[192] 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 unpunished. 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.[193] This method of dealing with homosexuality has been followed by the legislators of various European countries,[194] 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.[195]