twofold;— f i r s t , the pofleffion of a woman’ s perfon is not to be fought,
(that is to fay, to deßre, it is not lawful,) except in lieu o f property;
and teaching the Koran is not property; neither does ufufruflconffi-
tuteproperty, (according to the fentiments of our doctors,) becaufe
that is not fubftantial or permanent, whereas property is a thing of a
permanent nature, and what conftitutes actual wealth; fervice, therefore,
not being property, to feek the pofleffion of a woman’s perfon, in
return for the fervice of a freeman, is u n law fu lc o n t r a r y to a cafe
where a ßave obtains a woman in marriage on the condition of his
ferving her, fince here pofleffion is fought for that which is a&ual
property, the fervice of a Have being confidered as fuch, becaufe this
comprehends a flirrender or delivery of the flave’ s perfon, and the
perfon of a Have is actual- property, and of courfe the ufufrudl thereof;
wherefore it is analogous to the bellowing of the Have himfelf as a
dower: but with a hulband who is free this cannot be the cafe:
s e c o n d l y , it is not lawful that a woman Ihould be in a lituation to
exad the fervice of her hulband who is a freeman, as this would
amount to -a reverfal of their appointed ftations, for one of the requi-
fites of marriage is, that the woman be as a fervant, and the man, as
the perfon ferved; but if the fervice o f the hulband to the wife were
to conllitute her dower, it would follow that the hußand is as the
fervant and the wife as the ferved; and this being a violation of the
requifites of marriage, is therefore illegal: but it is otherwife with the
fervice llipulated to be performed by another free perfon, with that
perfon’s confent, as this offers no violence to the requifites of the contract
; and fo alfo, in the cafe of fervice of a Have, becaufe the fervice
performed by a Have to his wife is, in fa£t, performed to his maßet,
by-'whole confent it is that he undertakes i t ; and the fame with the
cafe of tending flocks, becaufe this is a fervice of a permanent nature,,
and admitted to be performed for wives, and therefore does not violate
the requifites of marriage ; for the fervice of the hulband to his wife,
as a dower, is prohibited only as it may be degrading to the former;
but the tending of flocks is not a degrading office. Mohammed, according
to his tenets, holds (as was already obferved) that the woman
is in this cafe, entitled to receive a fum amounting to the ellimated
value of the fervice, becaufe he maintains that what was llipulated (to
wit, the fervice) is property, but of fuch a nature as it is not in the
hulband’s power to make delivery of, fence by fuch an aft he would
violate the requifites of marriage; the cafe, therefore, is the fame as
if a man wete to marry a woman, affigning, as a dower, a Have, the
property of another, in which cafe he would have to pay the woman
the value of fuch Have.— Haneefa and Aboo Voofcf, on the other hand,
hold that the woman is entitled to a proper dower; becaufe they maim
tain that the fervice here llipulated is not property, as a woman cannot
legally exadl fervice of her hulband, being a freeman, in any fitu-
ation whatever, left a reverfal of ftations Ihould be induced, as was
juft obferved; the naming, therefore, o f fervice as a dower, is the
lame as naming wine, or a h o g ; for, not being capable of legal delivery,
it is not a fubjedt of appreciation; and fuch being the cafe,
recourfe is had to the original rule in defeft of any dower, and this
dictates a proper dower.
I f a man marry a woman on a dower of one thoufand Dirms, and
the woman make feizin of the faid thoufand, and then prefent the
fame to him, and he take pofleffion of fuch gift, and afterwards
divorce her before confummation, the hulband, in this cafe, has a.
claim upon his wife for five hundred Dirms, becaufe he is not con-
lidered, in law, as having received, in the form of the g ift, that
identical thing which becomes obligatory upon his wife in confequence
of divorce before confummation, fince money is incapable of identification
either in the fulfilment or the annulment of contracts. So alfo,
if the dower coiifift not of money, but of articles of weight or meafure-
ment of capacity, as iron or copper.— But if the wife were to make a
gift to her hulband of the thoufand Dirms, without having herfelf
been in pofleffion- of the fame * , and he were afterwards to divbrce
* That is to fay, relinquijhe* her right to it
i her
Cafes of a.
wife remitting
or returning
the
dower to her
hufband,
either wholly,
or in part.