from improper or eneqnal connexion; and this guard over the honour
o f a family is committed to the paternal relatives, whofe peculiar
province it is to take care that their Hock be not expofed to-any mean
or debating admixture, fo.as to fubjedt them to Ihame..— The argument
of Mann f a is, that authority to contract marriage is'inftituted
out of a. regard to the interell of the child,, which is fully manifefted
by committing it to perfons whofe relation to the infant is fo near as to.
render them interell:ed in its. welfare..
orthcMa -v ia If the Mawla* of an infant' female Have, having' emancipated’
ieniaieVave: her, Ihould contrail her. in marriage, it is lawful, although. Ihe
have relations within the prohibited, degrees upon the Ipot, provided
there be not among them any relations of the paternal defcrip-
tion, becaufe. the Mawla Hands as. a paternal relation, with, refpefit
to her..
or the Ma>
gijlrate, in
defeat of a
natural guardian
;
W here perfons are deftitufe of any natural' guardian, the author
rity of contracting them in marriage is veiled in the Imam- or the Kd-
zee; becaufe the prophet has, in his precepts, declared “ Perfons being
“ deflitute o f guardians have a guardian in the Sultan.”
or the neareft If the parents, or other firft natural guardians of an infant, Ihould
prefcntdnthe he removed to fuch a dillance as is- termed Gheebat-Moonkatat, it is in
abfence of tjlat cafe ]awfui for the guardian next in degree to contrail the infant
others. ° ° .
in marriage.— Zijfer and Shafei allege that it is not lawful, becaufe
this authority is veiled in the firft guardian as a right, in order that
the family may be preferved from the lhame occalioned by the infant
forming a degrading connexion; and this being a poftive right, cannot
be annulled by the abfence of the party, as the law does not admit
abfence to be deftruilive of a right; and hence it is that if the abfent
guardian were to contrail the infant in marriage on the fpot where he
* Meaning the emancipator.
o f Slaves*
For a full definition of this term, fee the Emancipation
may
may at that period happen to be, it is lawfu l; moreover, a relation
of a more diftant degree is not veiled with authority in the exiftence of
a nearer relative, fmce the more diftant is precluded by the nearer.— -
The argument of our doilors is that authority to contract minors in
marriage is inftituted out of regard to their interell, as was already
noticed; whence it is that this authority is hot admitted over any,
excepting fuch as are incapable of paying the neceflary attention to
their own interell; and this regard is not manifefted in committing
the bufinefs of marriage to the nearer guardian, who is. abfent, as
from the exertion of his prudence or good fenfe no advantage can, in
that fituation, be ealily derived i the authority, therefore, in this
cafe, devolves to the, guardian next in degree who is prefent:—
moreover, as, in cafe the firft guardian were to die, or to become,
infane, the authority would devolve to the next in degree, fo does it
likewife in the prefent.cafe» And with refpeft to- what Zijfer and.
Shafei have advanced,, that “ if the. abfent guardian were to contrail
“ the infant in marriage on the fpot where he may at that period
“ happen to be, it is lawful,”— the aflertion is not admitted; but
even granting this, it is Hill to be obferved, that although the more
diftant guardian be further removed from the infant in point o f con-
fanguinity, yet, being upon the Ipot, he is enabled to tranfadl for. the
latter, with the advantage o f immediate and local knowledge; and
vice verfd of the other guardians. Thus they Hand upon an equal
footing with- relpeil to authority; and whoever of them may enter
into a contrail: of marriage on behalf of the infant, the lame holds
good, and is not liable to be let alide.— By the abfence termed Gheebat-
Moonkatat-, is to be underftood the guardian being removed to a city-
out of the track of the caravans, or which is not vilited by the caravan
more than once in every year; fome, however, have defined it to,
lignify any dillance amounting to three days journey.. ■
Ie a lunatic woman have two guardians, one her fon and the other,
her father, the authority of difpofing of her in marriage refts with
the
The guar-
dianfhip over
a lunatic wo-
man'refts
with her fotu