property of thewomanontheinflantof thecontradl of marriage beino-
executed, for which realon it is that a woman is empowered to make
what ufe of her dower the may think expedient, by giving it away,
or transferring her property in it, e i t h e r o r without a return; and
the only difference that poflefhon makes is, thatthe hufband is thereby
exonerated from refponfibility with relpeft to it, this being limply a
tranfition of it from the pofieffion of the hufband to that of the wife,
which does,not become prohibited.hers by the IJlam o f the parties, any
more than in the cafe of a claim ofireftitution of wine which had been
forcibly feized;— that is ,tO fay, i f a perfon were to make a forcible
feizure of wine from a Zimmee, and this Zimrhee Ihould afterwards
become a Mujfulman, he is neverthelefs Rill at liberty to claim refli-
tution of the wine thus forcibly feized; and fo likewife in the prefent
cafe: (contrary to a cafe where a Zimmee purchates wine or a hog, and
afterwards becomes a Muffulman before he has taken pofieffion of his
purchafe; for in this cafe it is unlawful for him to take pofieffion, and
the bargain becomes void, becaufe, \i\Jale, a right of tranfaffion with
refpedt to the property fold does not take place until after feizin is
made o f it by the purchafer, which becomes forbidden by his fubfe-
quent I J l a m but where the unlawful article is not identically fpe-
cified, nothing but actual pofieffion can eflablifh a property in it, and
this becoming prohibited by the fubfequent IJdm of the party, and
being thereby precluded, the price or value of the pork would not be
due to the woman, becaufe the receipt o f that is the fame as of the
property itfelf,— hog’s flefh being o f the clafs of things denominated
Zoodtal-Keem, whereas wine is not of this nature, being o f the clafs of j
Zoodtal-Imfdl, for which reafon, if the hufband were to offer the value
before IJlam, the wife would be compelled to accept of that of the fork,
but not of that o f the wine.— It is to be remarked that i f the hufband,
in the prefent ipflance, .were to divorce his wife before confumma-
tion, the fame difference of opinion exifts among our doctors; thofe
who (as above) determine for a proper dower, decreeing her,a pfe-
fent; and thofe who make the value of the article obligatory upon the
hufband, decreeing her an half o f fuch value.
5 C H A P .
C H A -P . IV.
Of the Marriage of Slaves.
T he marriage of a male or a female flave is.not lawful without the
mailer s content. Mâhk has laid that the marriage of a male flave is
valid independant of the content of his mailer, becaufe he is competent
to pronounce divorce, and is therefore equal to the contrailing o f marriage—
The arguments of our doilors on this fubjedt are twofold;_
first, a precept of the prophet fays “ Whatever flave marries" without
, “ Ms owner's çonjent is an adulterer-,"— secondly, marriage, with
irfg$;£t either to male or female Haves,' is a blemifh * , on which ac-
I count they are not at liberty to enter into fuch a contrat without the
approbation of their owners.
N either is it lawful for a Mokâtib to enter into a contrail of
marriage without his owner’s confent; becaufe.a flave of this deferip-
tion, although he be, by virtue of his contrail of Kitdbat, rendered
(me with refpeit to acquifition, of neceffity, yet remains, with re-
IpeÆbto matrimony, fubjeil to the laws* of hondage. And,; for the
funy reafon, it -is not lawful for a Mokdtib to contract his own male
flave in marriage' without the confent of his owner ; but he may lawfully
contrail his female Have, as hence arifes an acquifition,'in her
dovver— In like manner, it is not lawful for a MoAdtiba to marry
without her owner’ s confent; but fhe may lawfully .contrail her
femaleffiaye in marriage, as . hence arifes an acquifition to 'he r as
•above. Neither is it lawful for a Modabbir or Am-Watid to marry
Slaves cannot
marry without
the confent
of their
proprietor;
nor Mokâtibs,
(although fuch-may contract
their
own female
flavesin marriage,)
nor Mokati-
bas,
(although
they have
VoL. |
■ "* As tending to depreciate their value.
Y without