Early in the Christian era the Roman Emperors legislated against homosexuality and Justinian's Code, in 538, condemned offenders to the sword; this became the foundation of social opinion and legal enactment for the next 1,300 years.

During the Middle Ages the problem of sex variants was dealt with in the same manner as that of heresy and witchcraft. Havelock Ellis states that in 1750 two pederasts were burned in France and that only a few years before the Revolution a Capuchin monk was also burned.

All during these 1,300 years the sin and sacrilege of sodomy was the ground for the imposition of punishment. The Church had a maxim, "Sodomy is high treason against the King of Heaven." The fact that it was considered a religious offense is most likely the reason the Code Napoleon omitted punishment for it.

The modern French law makes a clear and logical distinction between crime on the one hand and vice and irreligion on the other, only concerning itself with crime. 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 French law as a crime: (1) When there is public outrage, 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; and (3) when one of the parties is underage, or unable to give valid consent.

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, as it is also in Italy, Spain, Portugal, Roumania, Japan and numerous South American lands.

English speaking authorities on the subject are in general agreement with this philosophy, and, although our statutes lag behind, our law enforcement officers, as I will later show, generally try to observe these logical distinctions.

As Havelock Ellis points out, (4) the question of homosexuality is a social problem. Within certain limits, the gratification of the normal sexual impulse, even outside marriage, arouses no general or profound indignation and is regarded as a private matter; rightly or wrongly, the law regards the gratification of the homosexual impulse as a public matter. The law is in accord with what seems to be public opinion. Thus it happens that whenever a man is detected in a homosexual act however exemplary his life may previously have been, however admirable it may still be in all other relations nearly every ordinary normal citizen, however licentious and pleasure-loving his own life may be, feels it a moral duty to regard the offender as hopelessly damned and to help in hounding him out of society.

Alfred W. Herzog, when editor of the Medico-Legal Journal, said: "Whether indulgence in a certain act of homosexual intercourse was an irresistable or controllable impulse may be difficult to determine.

"We should, however, say that every homosexual is mentally abnormal by nature and should not be held responsible for his sexual inclinations and an occasional indulgence therein, except he thereby offends common decency or induces children to submit to his sexual practices." (5)

Ellis expresses the opinion(6) that legislation against homosexuality "has no clear effect either in diminishing or increasing its prevalence."

In England the law is exceptionally severe; yet, to again use Ellis as an authority, according to the evidence "of those who have an international acquaintance with these matters, homosexuality is fully as prevalent as on the Continent; some would say that it is more so. Much the same is true of the United States, though there is less to be seen on the surface. It cannot, the re-