in which he saw the mysterious “recompense which was meet” prophesied by St. Paul,[266] issued his edict condemning unnatural offenders to the sword, “lest as the result of these impious acts” (as the preamble to his Novella 77 has it) “whole cities should perish, together with their inhabitants; for we are taught by Holy Scripture that through these acts cities have perished with the men in them."[267] This edict (which Justinian followed up by a fresh ordinance to the same effect) constituted the foundation of legal enactment and social opinion concerning the matter in Europe for thirteen hundred years.[268] In France the vindices flammae survived to the last; St. Louis had handed over these sacrilegious offenders to the Church to be burned; in 1750 two pederasts were burned in the Place de Greve, and only a few years before the Revolution a Capuchin monk named Pascal was also burned.

After the Revolution, however, began a new movement, which has continued slowly and steadily ever since, though it still divides European nations into two groups.  Justinian, Charlemagne, and St. Louis had insisted on the sin and sacrilege of sodomy as the ground for its punishment.[269] It was doubtless largely as a religious offense that the Code Napoleon omitted to punish it.  The French law makes a clear and logical distinction between crime on the one hand, vice and irreligion on the other, only concerning itself with the former.  Homosexual practices in private, between two consenting adult parties, whether men or women, are absolutely unpunished by the Code Napoleon and by French law of today.  Only under three conditions does the homosexual act come under the cognizance of the law as a crime:  (1) when there is outrage public a la pudeur,—­i.e., when the act is performed in public or with a possibility of witnesses; (2) when there is violence or absence of consent, in whatever degree the act may have been consummated; (3) when one of the parties is under age, or unable to give valid consent; in some cases it appears possible to apply Article 334 of the penal code, directed against habitual excitation to debauch of young persons of either sex under the age of 21.

This method of dealing with unnatural offenses has spread widely, at first because of the political influence of France, and more recently because such an attitude has commended itself on its merits.  In Belgium the law is similar to that of the Code Napoleon, as it is also in Italy, Spain, Portugal, Roumania, Japan, and numerous South American lands.  In Switzerland the law is a little vague and varies slightly in the different cantons, but it is not severe; in Geneva and some other cantons there is no penalty; the general tendency is to inflict brief imprisonment when serious complaints have been lodged, and cases can sometimes be settled privately by the magistrate.