S E C T I O N .
< y "D i v o r c e by Comparifon, and the fever al Defcriptions f î t .
The number
of divorces
may be determined
by
figns made
with the
fingers j
but not uni eft
itbeexprefled
with a relation
to number.
I f a man lay to his wife, “ you are under divorce thus," holding
up his thumb and fore and middle finger, three divorces take place,
becaufe, from the holding up-of the fingers number is cuflomarily un-
derflood, where the fign is aflbciated with a relative to number; and
the word ££ thus” is of this kind; and the fingers held up are three in
number; whence three divorces are to be underflood :■— and i f the
fign be given with one finger, a fingle divorce1 takes place: if with
two fingers, two divorces.— It is to be obferved that the fign is to be
underftood from the fingers which are extended, and not from thofe,
which are clenched. Some of our modern doftors, however, fay that;
if it be made with the back of the fingers, it is underflood from thofe
which are clenched.— And i f the divorcer were to fay “ I have given
££ the fignal with the two clenched fingers,” whilfl at the fame time
he had actually given it with the extended fingers, his declaration is
credited with G o d , but not with the Kazee; and fo alfo where he
fays ££ I have intended the fignal by the palm of my hand, and' not
“ by the fin g ers'" infomuch that two divorces take place in the firjl
inflance, and one in the lafi, in a religious v iew ; becaufe figns are
made with the fhut fingers, or the palm of the hand, as. well as with
the extended fingers, and hence he may be allowed to have intended
to exprefs the number of divorce by figns capable of that conflrudtion:
but it contradicts appearances. And in the cafe now under confidera-
tion, if the word “ th u s" be omitted, and' the fign be made with
the thumb and fore and middle finger, yet one divorce only takes
plaqp^ becaufe the fign is not aflbciated with the relative, and hence
the
the words only remain, to wit, “ you are divofced,” from which one
divorce only refults.
I f a man give to the divorce which he is pronouncing a defcrip-
tion of particular vehemence or amplification, as i f he were to fay,
“ you are divorced ir r e v e r fib ly or “ you are divorced to a certainty,”
an irreverfible divorce takes place, whether the wife whom he fb
addrefles may have been enjoyed or not.— Shafei fays that the divorce
is reverfible where fhe has been enjoyed, becaufe reverfal during Edit,
after divorce from a wife already enjoyed, is fandioned by the precepts
of the law, and bringing it under the defcription of irreverfibility is
contrary to them; thus a hufband is not at liberty to pronounce, upon
an unenjoyed wife, a divorce irreverfible; the. word “ irreverfibly,”
therefore, is nugatory on this occafion, as much as if he were to fay
“ you are divorced, with this condition, that no right of reverfal re-
“ mains to me.”— The argument of our doctors on this point is, that
the man has pronounced the divorce under a defcription which it is
Capable of bearing, becaufe divorce takes place irreverfibly upon a wife
unenjoyed, (and alfo upon any other, at the expiration of the Edit ;)
and fuch being the cafe, the divorce takes place in this cafe irreverfibly
upon an enjoyed wife, the fame as upon one unenjoyed, the hufband
haying, by his defcription, fpecified a circumftance which is really
applicable to divorce. And with refped to the cafe of reverfal being
mentioned as an additional condition, (as cited by Shafei in, fupport of
his dodrine,) it is not admitted; becaufe there alfo a divorce:,irrever.-
fible takes place, where it is pronounced either without intention, or
with the intention of two divorces; but where three divorces are inr
tended, that number mufl take place,- as irreverfibility. bears the con-
ftrudtion of three divorces.. .
If a man fay to his wife. “ you are divorced, irreverfibly,” Of
“ you are divorced to a certainty,” .!and intend by his words, “ you
‘ are divorced” to exprefs one divorce, and by the additional words
■ “ irreverfibly,”
Divorce pronounced
with
an expreffion
of vehemence
is irreverfible
in its effeft.