The end of legal discipline
By 1750 most forms of consensual sex outside marriage had drifted beyond the reach of the law. This was a development that could not have been foreseen in 1700, let alone a hundred years earlier, for it overturned some of the longest-established moral and legal principles in English history.
Until the later nineteenth century there were sporadic attempts to re-criminalize certain forms of consensual unchastity. The idea was canvassed by successive groups of moral reformers; and legislation penalizing adultery in a variety of ways was introduced in parliament in 1771, 1779, 1800, 1809, and 1856-7.1 The arguments put forward in its support were little different from those that had sustained punishment in earlier times: the offence was a clear breach of God’s commandments; it caused grave injury to individuals and families; it disturbed the order of civil society. However, the motives and circumstances were by this time crucially different. The main object now was not necessarily to punish or even to prevent immorality, but to improve the law of divorce and to restrict private suits for ‘criminal conversation’. Above all, the prospect of treating adulterers and fornicators as public criminals was no longer one with any substantial basis in current jurisdiction, which made it much more difficult to contemplate. Around 1700, the intention of legislating had been to shore up a legal practice that, although on the decline, was still current. A century later, however, the machinery of criminal justice in this sphere, vigorously active for so many hundreds of years, had fallen almost entirely into disuse.
This did not mean that unchastity was no longer policed or punished. Bawds and prostitutes remained subject to various forms of legal and semi-legal harassment and penalty. Sodomy remained a capital crime, and (as we shall see) was targeted with increasing ferocity after 1700, as it came to be defined as the quintessentially ‘unnatural’ kind of behaviour. For plebeian men and women, the bastardy laws continued to criminalize the bearing of children out of wedlock. Amongst the propertied classes, the gradual rise of new forms of private litigation and divorce over unchastity compensated, at least symbolically, for the falling away of public jurisdiction.2 In America, the much stronger inheritance of Puritan ideals ensured that even in 1800 – indeed, well into the twentieth century – most states continued to treat adultery and fornication as public crimes, despite the weakening of sexual policing. More generally, as the judicial punishment of immorality declined, ever more energy was expended everywhere on the inculcation of sexual mores through education, literature, and social norms. As we shall see, even though chastity was no longer imposed by law, it remained, especially for women, a matter of overwhelming social importance.
Sexual discipline therefore encompassed many different things. But the decline and fall of public policing was nonetheless a momentous development. Since the dawn of English civilization the courts of the state and church had enforced the principle that illicit sex should not be tolerated by the community. Yet by 1800 the law had come to take a markedly different view of private and public affairs. Thus far we have followed the legal and social aspects of this transformation. As we are about to discover, it was also the consequence of the most profound intellectual earthquake ever to hit the western world: the Enlightenment.