K |m|| ||
1 I I
1 hi1 I I ; * «
173.
■ lIips Pill
* fclraf j
il’ ■! ilHillpB
Themarriage
of a free woman
with a
Have is annulled
by her
procuring hi-s
emancipation,
f t f I liillll lllHNlll
! p i
I i l
1 life II
i H
111
PU Ifilp'ï'
( i f :
H
1 1 1
lilvIlfeilPh
II. t i l l
1111 iflijp. <|.
f i l l t
j fffl
j
NlfWlr 1 i
B jilt
i l i l
M A R R I A G E . Book II.
caule his owner would other wife be his brother; and he is virtually
emancipated of courfei
If a free woman, being the wife of a Have, fhould fay to the proprietor
of fuch flave, “ Emancipate him on my behalf for a thoufand
“ D i r m s and he accordingly emancipates him, the marriage is annulled.—
maintains that it is not annulled.— Our doctors arwue,
on this occafion, that the Have obtains his freedom from the woman,
whence it is that the right o f Willa refls with her, and alfo, that if
lhe were under obligation to perform an expiatory a£t, and intend her
hufband’s releafe to Hand as fuch,' her expiation is thereby fulfilled._
With Zijfer the emancipation is held to proceed from the owner, be-
eaufe the woman has required him to emancipate the Have “ an her
- behalf,''” which is abfurd,. fince manumifllon. cannot take effect upon
a Have, who is not the property of the emancipator; confequently, her
requifition being improper, emancipation is-to be regarded as proceeding
folely from the owner.— Our doctors, on the other hand, fay
that there is one mode in which the requifition of the woman may be
rendered proper, v iz. by confidering her property in the flave to have
exiftence previous to emancipation, as an effential, (for her rio-ht of
pofieffion is a condition of the validity of emancipation on her behalf,)
and fuch being the cafe, her requifition “ emancipate.him, &c.” bears
the conftrudtion of her defiring the owner firfb to transfer to her his
property in the flave for fuch a confidcration, and.then to emancipate
him from her', and the reply of the owner, “ I have emancipated
“ him, is as i f he were to fay that he had transferred him, and then
fet him free “ from her and upon the woman’ s property in him
being eftablilhed, it neceflarily follows that the marriage.is annulled,,
the marriage of a free woman with her flave being illegal, fince pof-
feffion by right of property is irreconcilable with pofieffion by matrimony.—
But if the woman were to fay to the owner of her hufband
‘ emancipate him from me,” without mentioning any confideration,
in this cafe the marriage is not annulled, and the Willa refts with the
mafter.
Chap. IV. M A R R I A G E .
mafler. This is according to Haneefa and Mohammed,— Aboo Yoofaf
fays that this and the preceding cafe are the fame, and that the marriage
is here likewife annulled,, becaufe in this inftance alfo the tranf-
fer mull be fuppofed to have previoufly taken place, (though without
any return,) in order that the a£t may be lawful.
Objection.— Transfer of property,;., without a return,., amounts,
to gift, and that is not valid withoutfeizin-, now here feizin does not
appear; confequently how can the transfer be valid?.
Re pe y.— Seizin is not in this cafe regarded, any more than in
Zihâr; thus, i f the expiation of Zihâr were, incumbent upon any
perfon, and he were to defire another to give the viftuals * , as from
\h'm, and the other do accordingly, the gift is underflood indépendant
of feizin ', and fo here likewife.— The argument of Haneefa
[and Mohammed is that feizin being declared, in the ordinances o f the.
prophet, to-be a condition of gift, cannot be difpenfed w ith ; neither
ban it be eftablilhed merely by fuppofing or affuming.it, as an effen-
tial, becaufe feizin is a fenfhle ad,— contrary to fa le, which is a legal
tranfaftion: and in the-cafe of expiation, as cited by Aboo Yoofaf, the
poor Hand as the deputies of the expiator,. in the feizin of the victuals,
but the flave (in the cafe here treated of) cannot Hand as the wife’s,
deputy, becaufe nothing is received by him, fo as to conftitute him,
her deputy in feizin..
* Book of Divorce, Chap. IX .
C H A P , .
173
m