'Way.— Now'the decree being founded on the proof, and the authority
of the decree, in refpeCt to reality, being here poffible, by previoufly
•taking the marriage for granted, as a matter of neceffity, it follows
that the decree has authority in refpect to reality, in order that the
contradiction between the two may be obviated in every fhape,— for if
fhe were not lawful to him in reality, it would -occajion a contradiction
between the two, inftead of obviating a contradiction: contrary to a
'cafe of property claimed generally (that is to fay, without any mention
o f the caufe of propriety,) fuch as i f a man were to claim a female
Have generally, and bring falfe evidence, and the Kdzee decree the
flave to the plaintiff, and it afterwards appear that the witnefs bore
-falfe teftimony,— for in this cafe the decree has authority in appearance,
but not in redlity,' becaufe the caufes of propriety in the flave
are feveral, fuch as fa le, purchafe, g ift, and inheritance, and regard
cannot legally-be had to any one of thefe as being prior to the others,
fince no one o f them has precedence of the others, and to regard the
whole of them as prior, is impoffible; wherefore the decree cannot
. poffefs .any authority [in reality.~] Obferve that the previoufly taking
the marriage for granted, as a matter of neceffity, is on account that
a decree figniHes the promulgation of a thing which is eftablifhed, and
«»/ the eflablifhment of a thing which is not eftablifhed,— for, if it were
not previoufly taken for granted, it would follow that a decree ficrm-
fies the eftablifhment of a thing which is. ««eftablifhed, wherefore the
marriage is neceflarily firft taken for granted; and this is poffible in the
cafe o f a claim of marriage, but not in a cafe o f general propriety, for
the caufes-of propriety there are multifarious, and no one o f thefe has
.priority over- the other;— in fuch a cafe, therefore, the .regarding of
-any one caufe of propriety as prior to the others is impoffible.
C H A P . II.
Of Guardianfhip and Equality.
A w o m a n who is an adult, and of found mind, may be married
by virtue of her own content, although the contract may not have
been made or acceded to by her guardians; and this, whether fhe be a
virgin or a Siyeeba.— This is the opinion o f Haneefa and Aboo Toofcf,
as appears in the Zdhir Rawdyet.— It is recorded» from Aboo Toofcf,
that her marriage cannot be contracted except through her guardian.
Mohammed holds that the- marriage may be contracted,, but yet its--
!• validity is fufpended upon the guardian’s confent: on the other hand,
Mdlik and Shafek, afiert that -a .woman can by no means contract herfelf
in marriage to a man in any- circumftance, - whether.with or without
the confent o f her guardians;— neither is fhe competent to contract
her daughter or., her flave, nor to aCt as a matrimonial agent for any
one, fo as to. enter into a contract of marriage on behalf o f her confti-
tuent; becaufe the end propofed in marriage, is the acquifition of thofe.
benefits .which it produces, fuch as procreation, and fo forth; and i f
the performance of this contract were in any refpeCt committed to
women, its end might be defeated, they being’ o f weak reafon, and
.open to flattery and deceit.— Mohammed’argues that this apprehenfion:
|.is done .away by the pemiffion of the guardian being made a requifite
condition.— The reafoning upon which the Zdhir Rdwayet proceeds
in this cafe is that, in marrying, the woman has performed an aCt
affeCting herfelf only, and to this fhe is fully competent, as being fane
and adult, and capable of diftin.guifhing good from evil, whence it is .
that fhe is by law capacitated to aCt for herfelf in all matters of property,
and likewife to chufe a hufband; neither does a woman require
her guardian to match her for any other reafon than as flic may’, .
by thkt means, avoid the imputation which might be thrown upon.
6. hep.-
An adult
female may
engage in the
contrail without
her
guardian’ s
confent, .