166 M A R R I A G E . M A R R I A G E .
An owner
Haying his
female Have
before con-
furnrnation
has no claim
to her dower.
B ook II,
contrary to the cafe of a jfemale Have, whofe owner, as being entitled
to the carnal ufe of her perfon, is at liberty to transfer the lame to
any other.— The argument of our doctors on this fubjedt is that a
matter, in caufing his Have to many, acts with a view to the preservation
of his property, becaufe, by marrying, the Have is withheld
from the commifhon of whoredom, which is a caufe of deftrudtion or
damage * ; the matter, therefore, is fully empowered with refpedt to
the marriage, o f his male flaves, the fame as of his females; but hejs
not thus .empowered with refpedt to his 'Mokdtib, -or Mokdtiba, becaufe
thefe are, sas to privileges, the fame as free perfons, and their-
confent is therefore a condition ; for if it were otherwife, their privi-
leges and powers of adtion would be totally annulled.
If a man marry his female {lave to another perfon, and afterwards
put her to death, before her hufband has had carnal connexion with
her, no part of tire dower whatever is, in this: cafe, due from the
hufband, according to Haneefa. The two difciples hold that, in this
cafe, the dower is due from the hufband, in the fame manner as it
would be if the female flave had died a natural death; and the foundation
of their opinion is that a perfon who is flain dies by his own-fate,
death implying merely the termination of life, and life being terminated
by the adt of k illing; the cafe, therefore, is here the fameas if
the female {lave had been flain by a flranger,— that is to fay, , if the
female Have had been flain by a flranger, her dower would remain due
from the hufband, and fo alfo in the prefent cafe.— The-argument qf
Haneefa is that the owner of the flave, who (as being her Mawla)
claims the coniideration, has by his adt prevented the-delivery of the1
return, (to wit, the perfon of the woman,) and confequently his
right to the confideration is extinguifhed, in the fame manner as when
a free woman apoflatizes;— that is to fey, if a free woman apoflatize
from the faith before fhe has admitted her hufband to the carnal embrace,
no dower whatever is due to her, fhe [by her adt of apoflafy]
5-
* On account of the punifhment which attends it.
having
Chap. IV.
having prevented the delivery of the return; and fo likewife in the
prefent inftance. \-V ith refpedt to what is advanced by the two difciples,
that “ a perfon who is flain dies by his own fate,” it may be
anfwered, that although this be admitted, yet it holds with refpedt to
a future ftate only, and not with refpedt to this world, murder, according
to worldly inft'itutes, being in the eye of the law confidered as
an adt of dcflrudt'ion, inducing-retaliation, fine, and fo forth; and it
is therefore to be regarded as an adt of deftrudtion with refpedt to the
dower, that alfo being a temporal inftitution.
If a free woman kill herfelf before fhe has admitted her hufband to
carnal connexion, her dower is neverthelefs due from him:— contrary
to the opinion of Z ijfer, who conceives an analogy between this cafe
and that of a woman apoflatizing before carnal connexion, or. o f a
mafler flaying his female flave; for he argues that no dower whatever
ishere due from the hufband, as the wife,- to whom the confederation
belongs, has by her adt of fuicide prevented the delivery of the return.
The arguments of our dodtors are that, in worldly inftitutes, no
regard is paid to the offence committed by a man upon his own perfon,
wherefore fuicide is to be held as dying a natural death: contrary to
the cafe of a man killing his female flave, that being an adt to which
worldly inftitutes have regard, and, as fuch, fubjedting the perpetrator
of the murder to the performance o f adts of expiation.
If a man marry the female flave of another, and be defirous of
committing the adt of A z il with her, (i. e. emijjio Seminis in vino, vel
inter Mamillas,) this fhall depend upon her mailer’ s permiffeon, according
to Haneefa; and fuch alfo is the Zdhir Rowdyet.— According
to the two difciples, the permiffeon to this adt relts with the flave,
becaufe [as being the man’s wife] carnal connexion is her right, but
y A zil that carnal connexion which is her right is fruftrated; her
confent, therefore, is a. requifite condition to the legality of the
-tct, the feme as that of a free woman: contrary to the cafe of a
' female
167
The dower of
a free woman
is due although
fhe
kill herfelf
before con-
fummation.