tie of custom would in innumerable cases be snapped by the impulse of passion. Very many would never pass that painful novitiate, when tastes and habits have not yet assimilated, which is now so often the preface to many years of uninterrupted happiness. In many cases the mere decline of physical charms would lead to a severance of the bond. The appetite for change would grow with the means of gratifying it, and thus affections would be weakened, habits would be unsettled, and insecurity and misery would be widely spread. Nor would the evil stop here. The stability of domestic life is of vital importance to the position, the education, and the moral culture of the young, and to the maintenance among all classes of those steady and settled habits that are most valuable to the community.

It is not necessary in this place to pursue this subject into detail, or to discuss the exact amount of restriction which in these cases can be judiciously imposed. It is plain that the marriage tie is not one of those which the legislator can deal with on the principle of unlimited freedom of contract. It is also, I think, plain that the complete ascendancy in law of the secular view of marriage must sooner or later lead to a greater extension of the liberty of divorce than in England, at least, is admitted. The condemnation of either partner for any of the graver or more degrading forms of criminal offence, and even habits of inveterate and systematic drunkenness, might very reasonably be made legal causes. The question whether the desire of the two contracting parties, who have discovered that the contract into which they had entered is prejudicial to their happiness, should be regarded as a sufficient ground is a much more difficult one. It is clear, however, that a legislator who accorded such latitude would be perfectly justified in imposing upon both parties such a period of probation or delay as would meet the cases of fickleness or sudden passion, and on the stronger party such special burdens as would to some extent equalise the balance of interest. But his judgment on this matter should be formed solely by an estimate of consequences. He must strike the balance between opposing evils, and his point of view is thus wholly different from that of the theologian who starts with the belief that divorce is in itself necessarily sacrilegious. This is a matter for the conscience andj udgment of individuals, but not for the cog

nisance of law. In the Marriage Act of Lord Hardwicke the question of divorce was not directly raised, but the modern legal doctrine of marriage was fully established by the clause which treated matrimonial contracts as absolute nullities, though they were celebrated with a regular religious ceremony, if certain legal requirements were wanting. The dissolution of religious marriages for temporal reasons was, indeed, not altogether new in British law. In the Regency Bill, which was passed on the death of the Prince of Wales in 1751, there was a clause annulling any marriage contracted by the young heir to the throne before the expiration of his minority without the consent of the Regent, or of the major part of the Council; and a similar principle was involved in the Irish law annulling marriages between Protestants and Catholics, celebrated by priests or degraded clergymen. The Marriage Act of 1753, however, gave this principle a much greater extension. It was justly noticed as a striking illustration of the decline of dogmatic theology in England that a bill involving so important a principle should have passed without serious difficulty through the House of Lords, and should have been assented to by the whole bench of bishops.1

In the House of Commons, however, the Marriage bill was fiercely assailed. Henry Fox, who had himself a very natural predilection for the old system, though a member of the Government, met it with the most determined and acrimonious opposition, and he found a considerable body of supporters. Their arguments will now appear to most men very inconclusive. Much was said on such topics as the natural right of all men to be married as they pleased, the immorality that would ensue from any measure which rendered marriages difficult, the tendency of the new Bill to increase the despotic power of parents, and the advantages of the old system in assisting younger sons in marrying heiresses, and thus dispersing fortunes which under the law of primogeniture had been unduly accumulated. Such arguments could have no real weight in the

1 Walpole's Memoirs of George II. i. pp. 146, 342.

2 It is curious to observe what nonsense Horace Walpole talked about this Bill, not in a party speech, but in a grave history. He says that

VOL. I.

it seemed to annex as sacred privileges to birth as could be devised in the proudest, poorest little Italian principality,' that it was 'the bane of society, the golden grate that separates the nobility from the plebeians,’

K K

face of the glaring and scandalous evils of Fleet marriages, and the law as remodelled by Lord Hardwicke continued in force until the present century. It is evident, however, that the monopoly which the Anglican clergy possessed of celebrating legal marriages could not be accepted by other sects as a final settlement of the question, and as the principle of religious equality became more fully recognised in English politics, a serious and at last successful agitation arose against the Act. There were also some legal flaws in it which somewhat qualified the admiration with which it was regarded by lawyers.1 Such as it was, however, it was effectual in suppressing a great scandal and a great evil which had taken deep root in the habits of the nation. With large classes of the community the easy process of Fleet marriages was very popular. On the day before the new law came into force no less than 300 were celebrated, and a bold attempt was made by a clergyman named Wilkinson to perpetuate the system at the Savoy. He claimed, by virtue of some old privileges attaching to that quarter, to be extra-parochial, and to have the right of issuing licences himself, and he is said to have actually celebrated as many as 1,400 clandestine marriages after the Marriage Act had passed. By the instrumentality of Garrick, one of whose company had been married in this manner in 1756, a Savoy licence passed into the hands of the Government, and the trial and transportation of Wilkinson and his curate put an end to clandestine marriages in England. Those who desired them, however, found a refuge in Scotland, the Isle of Man, and Guernsey; and in 1760 there were always vessels ready at Southampton to carry fugitive lovers to the latter island.2

The measures I have enumerated, though very important, were for the most part remedies applied to some great and crying evils which had at last become intolerable to the community. Of the active reforming and philanthropic spirit which became so con

that from beginning to end of the Bill one only view had predominated, that of pride and of aristocracy.'Memoirs of George II. i. 336-348, 358.

See Lord Campbell's severe judgment of it. Lires of the Chancellors, vi. 262.

2 See J. Southerden Burns' very curious Hist. of Fleet Marriages; the copious extracts from the Fleet registers in Knight's Hist. of London; Pennant's London: Smollett's Hist. ; Parl. Hist.; and Walpole's Memoirs of George II.

spicuous in the reign of George III. we find scarcely any traces. Something of this spirit may be detected in the creation of the great religious societies, and in part of the legislation of William. Something of it appeared, though in a more exclusively ecclesiastical form, during the clerical reaction under Anne, but during the ascendency of Walpole and the Pelhams it almost wholly died away. The Methodist movement was as yet in its purely religious stage; the Court and Government initiated nothing, and the number of private reformers was very small. The scheme of Berkeley for founding a Christian university in Bermuda for the civilisation and conversion of America was one of the few examples. This most extraordinary man, who united the rarest and most various intellectual gifts with a grace and purity of character, and an enthusiasm of benevolence, that fascinated all about him, succeeded for a time in communicating something of his own spirit to some of the most selfish of politicians. The story is well known how his irresistible eloquence turned the ridicule of the Scriblerus Club into a brief but genuine outburst of enthusiasm; how he raised by subscription a considerable sum for carrying out his scheme, Walpole himself contributing 200l.; how his success in canvassing the Members of Parliament was so great that the Bill for endowing the university passed in 1726 with only two dissentient voices. Walpole was astonished at the success, having, as he said, ‘taken it for granted the very preamble of the Bill would have secured its rejection,' but although he promised 20,000l. he never paid it, and in 1731 Berkeley, receiving a private intimation that it was hopeless expecting it, was obliged to abandon the enterprise, and returned from Rhode Island to Ireland.

A more successful reformer was James Oglethorpe, a very remarkable man, whose long life of 96 years was crowded with picturesque incidents and with the most various and active benevolence. Having served as a young man under Prince Eugene, he entered Parliament in 1722, and sat there for thirtythree years. Though a man of indomitable energy, and of some practical and organising talent, he had no forensic ability, and he was both too hot-tempered, too impulsive, and too magnanimous to take a high rank among the adroit and intriguing

politicians of his time. He would probably have remained an undistinguished Member of Parliament if it had not happened that among his acquaintances was a gentleman named Castell, who, having fallen from a considerable position into hopeless debt, had been imprisoned in the Fleet, and being unable to pay the accustomed fees to the warder, had been confined in a house where the small-pox was raging, and had perished by the disease. This incident directed the attention of Oglethorpe to the management of the prisons. For many years it had been known that debtors in England were subject to frightful privations, and a book had been published as early as 1691 enumerating their wrongs, but no steps had been taken to redress them. Oglethorpe, however, succeeded in 1729 in obtaining a Parliamentary inquiry into the condition of the Fleet and the Marshalsea, which was afterwards extended to that of the other jails, and the results were so horrible that they produced a universal cry of indignation. It appeared that the wardenship of the Fleet was regularly put up for sale, that it had been bought from the great Lord Clarendon by John Huggins for 5,000l., that it had been sold by Huggins to Bambridge for the same sum in 1728, and that these men were accustomed, in addition to the large regular emoluments of the office, to exact heavy fees from the prisoners, and to avenge themselves upon those who were unable or unwilling to pay them, by the utmost excesses of brutality. In the Fleet, when Bambridge was governor, such prisoners were continually left manacled for long periods in a dungeon, almost unendurable from its stench and its want of ventilation, situated above a common sewer, and in which the bodies of those who died in the prison were deposited to await the coroner's inquest. One brave soldier had been falsely accused of theft, acquitted by the jury, and then seized and imprisoned as a debtor by the jailer on account of the jail-fees that were incurred during his detention. Cases were proved of debtors who, being unable to pay their fees, were locked up, like Castell, with prisoners suffering from small-pox, and thus rapidly destroyed; of others who were reduced almost to skeletons by