158 M A R R I A G E . B ook II,
o f the temporal law, the obligations of which extend to all alike,
T o this the two difciples reply, that aliens do not take upon them-
felves any obligation to the obfervance o f the laws o f Ifldm, neither
are they capable of fo doing, on the account of a difference of country:
contrary to the cafe of Zimmees, who are fubjedt to the Muffulman
law in all temporal concerns, or a£ts to which the temporal law has
reference, (fuch as whoredom, ufury, and fb forth,) fince they are fully
capable o f taking upon themfelves an obligation to the obfervance of
thofe laws,, as being native fubje&s of the Muffulman country. Ha-
neefa reafons upon this, that Zimmees do not fubject themfelves to any
of the laws o f IJldm, either with refpedl to things which are merely
o f a religious nature, (fuch as falling and prayer,) or with refpeft to
fuch temporal ads as, though contrary to the Muffulman law, they!
may hold to be legal, (fuch as the fale of wine, or of fwine’s flefh,)
becaufe we are commanded to leave them at liberty, in all things]
which may be deemed by them to be proper, according to the precepts
of their own faith; wherefore, with refped to all fuch .ads,
Zimmees are the fame as aliens; but from thefe is to be excepted whoredom,
that being held univerfally, and by all feds, to be a criminal
a d ; and as to ufury, no fuch thing can have legal exiflence, it being
excepted from all the obligations to which the perfon can be fuhjeft,
becaufe o f a faying of the prophet, “ Obferve that between us, ani
“ whofoever takes ufury, no engagements ex ifi."— The compiler of the
Hedaya remarks that what Mohammed has advanced in the farm
Sdgbeer, “ I f a Chrifian man marry a Chriftian woman without any
dower, ——and fo forth,— may be underflood in two ways,— one,
the abfolute exception of a dower, (that is, efpecially flipulating that
there Jhall be none-,') and the other, merely the omitting to mention
it in the contrad. Some have faid, concerning this cafe, that where
the dower is either made to confifl o f unlawful articles, or is not
mentioned in the contrad, there are two traditions; according to one,
the woman is entitled to her proper dower, (as maintained by the
two difciples,) and according to the other, nothing whatever is due:
and
Chap- HI. M A R R I A G E . *59
and it is from this variance in the traditions that the difference of
opinion arifes between Haneefa and Mohammed.
If a Zimmee marry a Zimmeea, making the dower to confifl o f wine
or pork, and one or both fhould afterwards embrace to the faith, yet
[the woman is neverthelefs entitled to the unlawful article fettled upon
her, although the converfion take place previous to feizin, provided
the unlawful article had been identically fpecified; but if this be not
the cafe, the woman, in the inflance o f wine, is to receive the
eftimated value of fuch wine, or in that of pork, her proper dower.
I —This is according to Haneefa. Jlboo Yoofqf alleges that the woman
[is entitled to her proper dower in either inflance. Mohammed, on the
[contrary, maintains that fhe is in either inflance entitled to the efli-
[ mated value of the unlawful article fpecified, whatever it be.— The
[reafoning upon which the opinion of the two difciples proceeds in this
[cafe is, that by feizin, or pofleffion, the right in the thing poffefled
[becomes fully eflablifhed and confirmed; feizin, therefore, is fimilar
[to a contradt of marriage, fince, like that, it produces a right which
[had not before exifled; and confequently the feizin of wine or
[fork by a MuJJlima, as a dower, is illegal, the fame as a contradl
itfelf including a fpecification of fuch unlawful articles, as a dower;
[and this, whether thofe articles may have been identically fpecified, or
[only generally mentioned.— Aboo Yoofqf further remarks that as,
[where the time o f feizin is connected with the time of the execution
[of the contrail, i f both parties were then to embrace the faith, her
\proper dower would become due to the woman, fo in the prefent
[inflance likewife:— with Mohammed, on the other hand, the mention
of the unlawful article, as a dower, is approved, as being held, by the
fe£t of the parties, to be property; but yet the delivery is forbidden,
on account of the parties having embraced the faith; wherefore the
value becomes obligatory upon the hufband, the fame as where a man
makes dower of a flave who dies before the delivery.— The argument o f
Haneefa, on this fubjedt, is that a dower identically fpecified becomes the
5 property
Of the dower
of infidel fub-
je£ls, where
it confifts of
wine or pork.