owner,] becaufe the hufband has here obtained pofleflion of an article
which was the property of the owner,, who is therefore entitled to the
return :: but if the marriage be not confummated until after emancipation,
the fpecified dower goes to the woman, becaufe in: thi-s cafe,
the hufband appears to have obtained pofFeffion* of an article which was.
her property, and fhe of courfe is entitled to the return,, fince the.
marriage, in confequence of her emancipation, takes efFedt from the
period of the contradiand. hence the fpecification of the dower is
valid, arid that which- was fpecified is incumbent; and accordingly,,
no other dower is due on account of carnal, connexion previous to the.
efficiency of the marriage, where, that has been fufpended [upon the
event of the owner’s approbation, or the flave’ sireedom,] becaufe the
marriage deriving its legality from the original contract, its efficiency
is confidered as exifting from the inftant the. marriage takes place;
nothing, therefore, but one dower can be due..
Cafe of a father
cohabiting
with the
Have of his
Jon,
I f a father enjoy the female flave of his fon, and fhe-produce a
child, and he [the. father] claim, it, the flave becomes his Am.Walid,
and he is anfwerable to his fon for her value; but he. is not fo for her.
dower, becaufe a father being at liberty to polfefs himfelf o f the property
of his fon, whenever that may he requifite to his own prefervi-
tion, it follows that he may poflefs; himfelf of his. fon!s flave, where
he requires her for the prefervation, of his .progeny, fince he thereby
provides for his own-continuance, he being virtually, continued in his
offspring; but the prefervation of his progeny being a matter of lefs
immediate importance than that of his life, he mull pay a price in exchange
for the flave, whereas he might.take his, fon’ s viBuals without
paying any price.— And. here the father’ s property in the flave is'
eftablifhed antecedently to his claim of the child, pofFeffion being a
condition efFential to fuch. claim, which does not hold gpod unlefs he
be either fully poffelTed of her in all refpecEs, or at leaft have a right
of pofFeffion in her;, and neither of thefe exift in him, (infomuch that
he might legally marry he r ;)— it is therefore requifite that his property
perty in her be confidered as exifting a priori; and this being admitted,
the father appears to have had carnal connexion with his own flave,
and confequently is not fubjedt to the payment of an A kir.— Ziffer
and Shqfei maintain that the flave’s dower is a debt upon the father;
becaufe they hold that his property in her is a confequence of his
Ifteelad, or claim of the child,— that is, that his right of pofFeffion is
is thereby eftablifhed, the fame as in a partnerfhip flave; now the
effedt of a thing is not found until after that thing has taken place;
and fuch being the cafe, as the carnal connexion appears to have
been had, in the firft inftance, with the property of another, a dower
is due.
If a man marry his female flave to his father, and fhe produce a
child, fhe does not become Am Walid to the father, neither is her
price a debt againft him, becaufe he is anfwerable for her dower: and
the child born of her is free, fuch a marriage being approved by our
do&ors.— This is contrary to the dodtrine of Shcfe'i, according to
whom a marriage of this kind is illegal. T h e argument of our doctors
is7 that the flave is not at all the property of the father, becaufe,
the fon being her proprietor in every refpedt, it is impoflible that the
father fhould be fo in any view ; the fon, moreover, is endowed with
privileges [in regard to her] which do not appertain to his father, fuch
as felling or bellowing her in marriage, or emancipating her, which
evinces that the father is not in any refpedt her proprietor, although,
in a cafe where he has carnal connexion with her, punifhment drops,
on account o f erroneous pofFeffion; and his marriage with her being
admitted as legal, the confervation of his feed is effedted by means,
of marriage, [not by means of Ifeelad,~\ fo'that his property in her isf
no way eftablifhed [by the circumftance of her bearing a child to him,]
and confequently fhe does not become his Am IValid.— And here the
father is not anfwerable for the value either of her or of her. child, as
he does hot become proprietor of either; but he owes her dower, he
having taken that upon him by his marriage; and the child is free, be-
Z 2 • caufe
Cafe of a fon
contra&ing
his female
flave in marriage
to his
father*