210 tvt v n v r v
the marriage is not valid, becaufe it is not conceivable that legality
Ihould be eftabliffied in that particular member, and extend, ineonfe-
quence, to the whole perfon,:as the illegality exifting in the other
members exceeds the legality in that particular member, — whereas the
reverfe holds in divorce.— T o this our dodtors reply, that-a fpecific
member, fuch as the hand or foot, not being in itfelf a proper fubject
of divorce, the application o f that to it is-null, the,lame as to a \vq.
man’s ffittle ', or to her nails, the ground of which is that the fubjed
of divorce mud be fomething upon which a bond, or connexion may
exilf, (as divorce implies the diffolution of a bond or connexion,
there is no bond upon th a hand-, for which reafon it (f^that th e application
of marriage to. that part is invalid; contrary to a general po.-.j
tion of .-the body, which being (with our doctors) a proper fubject ot'i
marriage, the application of that to it is valid, and it is confequently a
proper fubject o f divorce alio. There is a fimilar difference of opiniols
where the divorce.is applied to the belly or the back: but it is evident |
that here divorce does.not take place, as thefe parts are never ufed to 1
imply the whole perfon.
tfcTtltm. lF a man Prouomice uPon his wife an h a lf divorce, one divorce'
Pff a*” ’tS ta^^S ■ becaufe divorce is not capable of divifion, and the mention
of any portion of a thing of an indivifible nature Hands a l a mention';
of the whole : and the fou rth, or fifth , or any other proportion
of divorce, is analogous to the half, in what is now faid, for-the fame
reafon.
Equivocal J p a hufbandfay to his -wife “ you are under three moieties of two
“ divorces,” three divorces take place, becaufe the half of two is one,
and confequently three moieties of two divorces amount.to three.—
And if he were to fay “ you are under three moieties of one divorce,”
fome are of opinion that two divorces take place, this amounting to
one and a half; but others alledge that i t produces three divorces,
becaufe every moiety, amounts -to one. complete divorce, on
the
the principle already Hated : various doflors agree in approving the
former opinion.
I f a man fay to his wife “ you are under divorce, from one to
“ two,” or “ between one ami two,” in this cafe one divorce takes
place; and i f he were to fay,— “ from one to three,” or'“ between
“ one and three,” two divorces -take place.— This is the doflrine of
Harieefa.— The two difciples affert that by the firfl form two divorces
take place, and by the lafl three.— Ziffer, on the other hand, maintains
that by the firft form no divorce takes place, and by the fécond one
divorce only, this being conformable to analogy, becaufe the boundaries
of a thing are not included in the contents ; as for example,
where a man fays “ I have fold fuch a piece of ground, from this
“ wall to that wall,” in which cafe, neither wall is included in the
fale.— The ground of opinion of the two difciples is that, in fuch a
mode of fpeaking, the whole is by çuHorn underflood, as for example,
where one man fays to another, “ take, o f my property, from
“ one Dirm to an hundred,” which implies the whole hundred.”—
The argument of Haneefa is that, in this indefinite mode o f expreffion,
no particular number is implied, any more than where a man, in dif-
Courfe, fays “ my age is from fixty to feventy years,” or “ between
“ fixty and feventy,” by which he means fome indefinite term between
thefe two: and in reply to the argument of the two difciples,
it is fufficient to obferve that the whole is to be underflood only where
the expreffion relates to a thing of an' indifferent nature, as in the
inftance cited by them ; but divorce is in itfelf a dangerous and dilap-
proved procedure: and to what is advanced by Ziffer it may be
anfwered, that it is neceffary that the firft boundary be in exiftence,
fo as that the fécond may bear a relation to it ; but in the prefent
cafe the fir fi boundary (to wit, divorce,) is not in being, nor can be
o, unlefs by divorce taking place, which it accordingly does o f this
neceffity: contrary to the cafe of fale, cited by Ziffer as appofite to
is, becaufe there both boundaries (underftood by the two walls)
■ F f do
and indefinite
forms.
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