100
Infants may
be contrafte'd
by their
guardians.
M A R R I A G E . Book IT.
tion after the time of option has elapfed, and the other denies the re-
jedtion,— for in that cafe the declaration of the denier is to-.be credited,
as he adheres to what isoriginal, to wit, Jilence. Our dodtors, on the.
other hand, fay that the hufband, in the prefent cafe, on accountiof
his plea of Jilence, pleads' the obligation of the contradt of marriage, and.
confequently of his being the proprietor of the woman's, perfon * ; and
that the wife, by pleading the rejection, fets afide the claim of her huf-
baiid, and muft therefore be confidered as the defendant, in the fame manner
as when a depofitee pleads the reftoration of adepofit, and the proprietor
of the depofit declares that he had not returned it to him; becaufe,
in fuch'a cafe, the declaration of the t'ruftee- would be credited, fince
lie is in reality the defendant, although in appearance he be the plaintiff,
for he frees himfelf from refponfibility, and the original Rate of man:
is freedom, and an exemption from refponfibility:— it is otherwife
with refpedt to the cafe of a condition of option in fa,le, hecaufe the
obligation of a fale is manifefted'after the lapfe of the time of option,
and therefore the perfon ‘who pleads the rejedtion is plaintiff both in
reality and in appearance. But here, i f the hufband fhould produce
evidence in fupport of his filence, the marriage becomes eflablifhed:
if, however, -he haye no evidence, then an oath muR not be impofed
upon the wife, according to Haneefa%— This is one out of fix cafes in
which an oath is incumbent upon the defendant, according to Haneefa,
in oppofition to the opinion of the two difciples.; as will be fully
treated of under the head of fales. „
T he marriage of a boy or girl under age, by the authority of their
paternal kindred, is lawful, whether the girl be a virgin or no.t, the
prophet having declared “ Marriage is committed to the paternal
‘‘ '■ kindred. Malik alleges that this is a power the exercife of which
does not appertain to any of the kindred except the father.— Shafei
maintains that it belongs only to her father or grandfather: apd he
, * Arab.-Bdoza, i. e.. Genitale M ulieris. T h e phrafe here adopted is to be thus understood,
in marriage and divorce, throughout.
adds
M A R R I A G E . IOI
Chap. II.
adds that this privilege does not appertain to any guardian whatever
with refpedt to an infant Siyeeba, although he be- her father or her
grandfather.— Malik argues that power, over freemen is eftablifhed
from neceffity; but in the prefent. inftance no ftjgh neceflity exifls, as
infants are not fubjedt to any carnal appetite-; yet it is vefled in a
father, on the -authority' of the fecred writings^. contrary to what,
analogy4 would fuggefl:— but he'alfo fays that a grandfather, not
being the fame as a father, is not to be included' with him. Our
doctors, on thé other hand, allege that the guardianfliip vefled in s
father is in no reipedt ‘contrary, but is father agreeable to analogy;,
becaufe marriage is a point which involves in it many confiderations,
both civil and religious; and it is not perfedt unlefs the parties be equal.
| in degree' according to the cuflomary acceptation; and this equality
■ is not always to be found; wherefore authority is vefled in the father
to contradt his children during their minority, left an opportunity of
marrying them equally might be loft.— Shafei argues, that entrufting
the power of contradting marriage to any others than the father or
grandfather would be oppreflive upon the child, fince it is to be flip—
pofed that no ethers are equally interefted in its welfare or happinefs;
on which principle it is „that kindred óf a more.diftant degree are not
empowered to adt with refpedt to the property of infants, a matter of
infinitely lefs importance than theirperfons, and confequently the adts.
of fuch, with refpedkto the latter,, are unlawful a fortiori.— Our doctors
argue, that affinity is- -a caule of affedtion in other relations the
fame as in the parents, -and in whatever degree that may be defedtive,
a provifion is made againft any evil confequence, by veiling in the
child an option of acquiefcence in the match after puberty, which ac-
quiefcence is neceflary to conftitute its validity t contrary to the cafe
of adts with refpedt to property, becaufe thefe are capable of repetition,
fince they are done with a view to the acquifition of gain, which
cannot be obtained but 'by fuch repetition; and fuch being the cafe,,
if any lofs Ihould happen in the property, it is irretrievable; wherefore
authority to adt in refpedt to property is ufelefs, unlefs it be abfol'ute;
and