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durefs by imprisonment: but if a man be lawfully imprisoned, and execute a contract to obtain his difcharge, then fuch contract will be binding.

CHAPTER FOURTH.

OF THE RIGHT OF PRIVATE PROPERTY.

THE original right to property is founded in the nature of

things. It confifts in the power of ufing and difpofing of it, without controul. But in a ftate of fociety, it became neceflary for the mutual convenience of mankind, that this natural right fhould be laid under certain restrictions and limitations. We therefore do not appeal to the laws of nature for the title to the property we poffefs. This would open the door to endless controverfies and difputes, and would be in a measure reverting to a ftate of nature. But that property may be upon a certain, permanent foundation, there have been certain positive rules adopted by mankind, which govern the acquifition, the ufe, and the dif pofition of it. Thefe are calculated to give the poffeffors a more perfect enjoyment, than can be derived from natural law, and thereby compenfate for thofe rights which are refigned, upon entering into fociety.

The laws of this ftate refpecting property, are founded upon principles of justice and good policy, and secure to the people, the moft enlarged powers and privileges. Every man in the exercise of common reason, is capable to acquire property, to use and improve it in fuch manner as he thinks fit, if he injures no other perfon, and to convey, transfer, and difpofe of it as he pleafes, in conformity to certain rules and regulations prefcribed by law. Every perfon has a clear title to the property he acquires, in his own right, independent of any fuperior whatever, and no one can deprive him of it, without his agreement and confent, unless by force of exprefs law. There is no fupreme authority, that poffefs an arbitrary power to take away the property of any perfon without his confent, exprefs or implied, even for the fupport of civil government. The general affembly who are elected by the

people

people, and to whom they delegate the power of confulting and acting for the general good, have a right to impofe taxes upon the people, for the purpose of defraying the neceffary expenfes of government. But as they are the reprefentatives of the people, the people do in fact virtually affent to every tax that is granted, and thereby have a compleat fecurity against all unreasonable and unneceffary impofitions of public burdens.

It would be a matter of curiofity to compare our condition, with the greater part of the nations of the earth. In fome of the most fertile countries of Afia and Africa, where the fpontaneous productions of nature, furnifh the inhabitants, with all the luxuries and elegances of life, the defpotifm of government, has rendered them compleatly wretched and miferable. The title to their property is dependent on the arbitrary will of the mafter, and all the wealth they can accumulate, is perpetually expofed to be taken from them, by the hands of the rapacious vultures that govern them. Under fuch a government, genius droops, induftry lauguifhes, woe and mifery reign triumphant, and happiness is banifhed from the land.

CHAPTER FIFTH.

OF HUSBAND AND WIFE.

THE connexion between hufband and wife, conftitutes the most

important, and endearing relation, that fubfifts between individuals of the human race. This union, when founded on a mutual attachment, and the ardor of youthful paflions, is productive of the pureft joys and tenderest transports, that gladden the heart.

This connexion between the fexes, has been maintained in all ages, and in all countries; tho the rights and duties of it have been very various, as well as the modes and ceremonies, by which it is contracted. The most general principle that has been adopted is that a man shall have but one wife, but in the fouthern climates, and in the countries where the dreary religion of Mohamed has prevailed, polygamy has been introduced, the women have been treated as flaves, and confidered as merely the objects of luft

7 Alexander's Hift. Woman.

and

and fenfuality. The manners of the people, in confequence of this practice, are barbarous, unpolished, and unfocial. Among favage nations, the women are treated as beings of an inferior order, and are fubjected to all the rigor and hardship of flavery. The progrefs of nations to civilization and refinement of manners, is marked by an encreafing attention to the female fex, and fociety may be faid to have arrived to the highest point of improvement, when the charms of their beauty and the foftnefs of ther virtues are united in beftowing the fweeteft joys on domeftic life, when they are confidered as the equal companions and friends of the other fex, and when the intercourfe of the fexes is regulated by fentiments of decency, delicacy and propriety. Perhaps no country has a better right to boast of this ftate of manners, than America.

Marriage has been deemed a civil contract, in all countries, excepting where the chriftian religion has flourished. When this religion was established, marriage was taken under its special guidance and direction, and the union of the two fexes was confidered in a very different light from what it was confidered by the Pagan nations. Such are the extravagant abfurdities which have been adopted that it is a truth, that the doctrine has been holden, that a man who has tafted the pureft domeftic pleafure, in the arms of a virtuous and lovely wife, becomes polluted, and unfit to minifter in holy things, at the altar of God, and that the abstaining from thofe endearing pleafures, to enjoy which we are impelled by the strongest propenfity of the human heart, is the most acceptable. facrifice to that Being, who created us, and implanted in us the very principles that this doctrine counteracts. From this fource has flowed the celibacy of the clergy and the monaftic inftitutions, where a perpetual warfare between miftaken duty and natural paffion, has rendered thefe victims of fuperitition, the moft wretched

of mortals.

The Roman catholics have advanced the contract of marriage to the dignity of a facrament, and rendered it a powerful and fuccefful engine, to promote the afpiring views of the clergy. in England, marriage is confidered in a great measure, as a matter of fpiritual jurisdiction. The law points out certain modes to be pur

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fued to compleat the contract, and deduce the confequences refulting from it. But the celebration and diffolution of it, and the punishment of all crimes refpecting it, are left to the ecclefiaftical courts, who punish only for the good of the foul.

But in this ftate, we have happily thrown off those shackles which the devices of men had invented to render mankind miferable, under the pretence of rendering them religious and preparing them to be happy. This contract, by our law is confidered merely in a civil light, and the clergy have no power, but to celebrate the marriage, by virtue of exprefs law, in the fame manner as the civil magiftrate. All crimes that can be committed by an unchafte and illegal intercourfe between the fexes, are punished by the courts of common law.

For a clearer comprehenfion of this fubject, I fhall diftribute it under the following heads:

I. How the contract of marriage may be made, and published. II. How it may be diffolved.

III. How it operates upon the acts of the wife, previously done, and of agreements between them during marriage.

IV. The power which marriage gives the husband, over the eftate of the wife.

V. How far the hufband is chargeable with the debts of the wife, contracted before, or after marriage, and of a wife who is executrix, or adminiftratrix.

VI. When a husband and wife muft join in fuing, and be joined when fued; and when the wife may fue, or be fued as a single

woman.

VII. Of the power of the husband over the perfon of the wife, and her remedy for any injury done her, by him.

VIII. How far the acts of the hufband, or wife, alone, or jointly with the wife, will bind the wife.

IX. Of the crimes of the wife, where fhe alone shall be punVOL. I. ished

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ifhed, and where the hufband is anfwerable for what she does in a civil action. Of each of these, I fhall treat in their order, and,

I. How the contract of marriage may be made, and publifhed. Under this head, it must be obferved, 1. That the parties must be of ability and capacity to contract. 2. They must in fact make a contract, and 3. The contract must be executed and published according to the forms and ceremonies required by law.

In regard to the ability of perfons, it must be noted, that in general all perfons have the power, unless they are disqualified by fome particular difabilities or impediments.

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age

I. Want of age incapacitates perfons to make this contract. The of confent is fourteen for boys, and twelve for girls; if they marry under thofe ages, the marriage is imperfect, and the parties when they arrive to the age of confent, but not before, may agree to the marriage, which renders it valid without further celebration, or difagree which renders it void. If one of the parties be above, and the other under the age of confent, then the party above fuch age, may difagree, as well as the other, for both must be bound, or neither; but fuch party cannot difagree, before the other arrives to the proper age.

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2. Confanguinity and affinity, between perfons, difqualify them to make this contract. The statute law which is copied from the Levitical law, prohibits all perfons within certain degrees of propinqui ty, by blood or marriage, from intermarrying, declares void fuch marriages, baftardizes the iffue, and punishes with great feverity, fuch incestuous conduct. . All marriages between perfons related in the afcending or defcending line, to the remoteft poffible degree are prohibited, on the principles, that fuch incestuous connection is repugnant to the law of nature, for the mother would never preferve and educate the female iffue, if the father might have accefs to them, nor the father the male iffue, if they might afcend the bed of the mother that it deftroys the natural duties between parents and children; for the parent could never maintain that authority, which is neceflary for the education and government of the child, nor the

child

971 I Black. Com. 436. 1 Bac. Abr. 228. 3 Ibid. 119. Co. Lit. 72. n Statutes, 136. Lev. xviii. 3 Bac. Abr. 571.

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