But from the standpoint of property and inheritance it is quite intelligible, and on that ground it is still supported by the majority of Englishmen. If the wife has intercourse with other men there is a risk that the husband's property will be inherited by a child who is not his own. But the sexual intercourse of the husband with other women is followed by no such risk. The infidelity of the wife is a serious offence against property; the infidelity of the husband is no offence against property, and cannot possibly, therefore, be regarded as a ground for divorce from our legal point of view. The fact that his adultery complicated by cruelty is such a ground, is simply a concession to modern feeling. Yet, as Helena Stöcker truly points out ("Verschiedenheit im Liebesleben des Weibes und des Mannes," Zeitschrift für Sexualwissenschaft, Dec., 1908), a married man who has an unacknowledged child with a woman outside of marriage, has committed an act as seriously anti-social as a married woman who has a child without acknowledging that the father is not her husband. In the first case, the husband, and in the second case, the wife, have placed an undue amount of responsibility on another person. (The same point is brought forward by the author of The Question of English Divorce, p. 56.)
I insist here on the economic element in our sexual morality, because that is the element which has given it a kind of stability and become established in law. But if we take a wider view of our sexual morality, we cannot ignore the ancient element of asceticism, which has given religious passion and sanction to it. Our sexual morality is thus, in reality, a bastard born of the union of property-morality with primitive ascetic morality, neither in true relationship to the vital facts of the sexual life. It is, indeed, the property element which, with a few inconsistencies, has become finally the main concern of our law, but the ascetic element (with, in the past, a wavering relationship to law) has had an important part in moulding popular sentiment and in creating an attitude of reprobation towards sexual intercourse per se, although such intercourse is regarded as an essential part of the property-based and religiously sanctified institution of legal marriage.
The glorification of virginity led by imperceptible stages to the formulation of "fornication" as a deadly sin, and finally as an actual secular "crime." It is sometimes stated that it was not until the Council of Trent that the Church formally anathematized those who held that the state of marriage was higher than that of virginity, but the opinion had been more or less formally held from almost the earliest ages of Christianity, and is clear in the epistles of Paul. All the theologians agree that fornication is a mortal sin. Caramuel, indeed, the distinguished Spanish theologian, who made unusual concessions to the demands of reason and nature, held that fornication is only evil because it is forbidden, but Innocent XI formally condemned that proposition. Fornication as a mortal sin became gradually secularized into fornication as a crime. Fornication was a crime in France even as late as the eighteenth century, as Tarde found in his historical investigations of criminal procedure in Périgord; adultery was also a crime and severely punished quite independently of any complaint from either of the parties (Tarde, "Archéologie Criminelle en Périgord," Archives de l'Anthropologie Criminelle, Nov. 15, 1898).
The Puritans of the Commonwealth days in England (like the Puritans of Geneva) followed the Catholic example and adopted ecclesiastical offences against chastity into the secular law. By an Act passed in 1653 fornication became punishable by three months' imprisonment inflicted on both parties. By the same Act the adultery of a wife (nothing is said of a husband) was made felony, both for her and her partner in guilt, and therefore punishable by death (Scobell, Acts and Ordinances, p. 121).
The action of a pseudo-morality, such as our sexual morality has been, is double-edged. On the one side it induces a secret and shamefaced laxity, on the other it upholds a rigid and uninspiring theoretical code which so few can consistently follow that theoretical morality is thereby degraded into a more or less empty form. "The human race would gain much," said the wise Sénancour, "if virtue were made less laborious. The merit would not be so great, but what is the use of an elevation which can rarely be sustained?"[[268]] At present, as a more recent moralist, Ellen Key, puts it, we only have an immorality which favors vice and makes virtue irrealizable, and, as she exclaims with pardonable extravagance, to preach a sounder morality to the young, without at the same time condemning the society which encourages the prevailing immorality, is "worse than folly, it is crime."
It is on the lines along which Sénancour a century ago and Ellen Key to-day are great pioneers that the new forms of anterior or ideal theoretical morality are now moving, in advance, according to the general tendency in morals, of traditional morality and even of practice.
There is one great modern movement of a definite kind which will serve to show how clearly sexual morality is to-day moving towards a new standpoint. This is the changing attitude of the bulk of the community towards both State marriage and religious marriage, and the growing tendency to disallow State interference with sexual relationships, apart from the production of children.
There has no doubt always been a tendency among the masses of the population in Europe to dispense with the official sanction of sexual relationships until such relationships have been well established and the hope of offspring has become justifiable. This tendency has been crystallized into recognized customs among numberless rural communities little touched either by the disturbing influences of the outside world or the controlling influences of theological Christian conceptions. But at the present day this tendency is not confined to the more primitive and isolated communities of Europe among whom, on the contrary, it has tended to die out. It is an unquestionable fact, says Professor Bruno Meyer, that far more than the half of sexual intercourse now takes place outside legal marriage.[[269]] It is among the intelligent classes and in prosperous and progressive communities that this movement is chiefly marked. We see throughout the world the practical common sense of the people shaping itself in the direction which has been pioneered by the ideal moralists who invariably precede the new growth of practical morality.
The voluntary childless marriages of to-day have served to show the possibility of such unions outside legal marriage, and such free unions are becoming, as Mrs. Parsons points out, "a progressive substitute for marriage."[[270]] The gradual but steady rise in the age for entering on legal marriage also points in the same direction, though it indicates not merely an increase of free unions but an increase of all forms of normal and abnormal sexuality outside marriage. Thus in England and Wales, in 1906, only 43 per 1,000 husbands and 146 per 1,000 wives were under age, while the average age for husbands was 28.6 years and for wives 26.4 years. For men the age has gone up some eight months during the past forty years, for women more than this. In the large cities, like London, where the possibilities of extra-matrimonial relationships are greater, the age for legal marriage is higher than in the country.
If we are to regard the age of legal marriage as, on the whole, the age at which the population enters into sexual unions, it is undoubtedly too late. Beyer, a leading German neurologist, finds that there are evils alike in early and in late marriage, and comes to the conclusion that in temperate zones the best age for women to marry is the twenty-first year, and for men the twenty-fifth year.