é 'É -r È
Mi
I
i -i>
il
9 ;:
III
ï É l ;i l
la ffmÀïrgmli
by his wife, 'in-, which cafe the Kdzee is - to decree a.divorce, biit yet it
does not exift as a divorcé between the hufband and God, unlefs fuch
was his intention *.
T he compiler of the Heddya obferves that Kadooree has' not
made any diftinâion whatever between thefe expreffions in divorce:,
on the contrary he has faid, “ from all thofe expreffions, “ when
“ ufed in reply to a requifition of divorce, a divorce takes place.
“ independant of the intention, in a legal view, but not in a reMgkk1
“ view,” whereas it is not fo, thisHrule being confined to fuch ew
preffions as are incapable of being conftrued into a denial of the requi-
fition of diyorce.
I t is to be obferved as a rule, that there are.three poffible fitSI
tions in which the perftjn making ufe of thefeexpreffions may lia «
f i r s t , a general fituation, that is', whftie he is neither^ fwayed by]
anger, nor by any requifition of divorce, but a£ts from an unbiafled
volition ; s e c o n d l y , where divorce is the fubjedt of difcoùrfe at the!
time o f fpeaking, (as, for inftance, where it is demanded o f him 9
his wife ;)— t h i r d l y , where he is tinder the impulfe o f anger. fThel
expreffions of implication are alfo of three kinds;— f i r s t , thofe which!
equally bear a conftrudtion either of denial o ï ajfént ;— s e c o n d l y , thofl
which can be conftrued into ajfent only;— and, t h i r d l y , tM3l
which may be conftrued either into ajfent; or into exclamations m
contumely and reproach : and, in the JirJl of thefe fituation!’, 3i|6rjt|
does not take place from any of thole expreffions but by intention; !
and if the hufband declare that he had no fuch intention, his déclarai
tion is to be credited, becaufe they all bear a double conftruftion, and
* That is to fay, although divorce take place in point of law from the judicial decree,
yet in foro confcientia the man muft continue to hold himfelf married, infomuch that he cannot,
without fin, marry another woman, in lieu of her who is thus divorced. This is the
jdiftinctiori between law and religion in divorce throughout.
hence
hence the intention is neceflary to eftablifh the effect ; and, in the
\fecond fituation, divorce takes place indépendant of the intention in a
[legal view, and the declaration of the hufband is not to be credited,
where he has ufed expreffions bearing a conftrudtion o f ajfent only;
which are as follow :------
“ You are difen gaged !”
“ You are feparated l”
“ You are cut off!”
“ You are prohibited !”
“ Count !”
“ Your bufinefs is in your own hands !”
“ Choofe!”
The reafon of which is, that the evident meaning of the hufband, in
nifino' them in reply to- a requifition of divorce, is divorce, as they da
[list bear a conftruction of denial;. but if, in this fituation, the huf-
Iband ufe any of thefe expreffions which may be conftrued equally into
\ànial or ajfent, divorce does not take place but by intention ; and the
[declaration of the hufband, with refpedt to his intention is to be credited.
The expreffions alluded to are.as follow t
“ Go !”
“ Get up !”
[ “ Veil yourfelf !”
“ Get but 1” and fo forth;:
becaufe thefe words may all be conftrued into denial of the requeft;'
I— and agthe denial o f a requeft is a circumftance lefs forcible than the
■ aft of divorce, they , are rather to be taken in the former .fenfe; but
■ yet, as they alfo bear a conftrudtion of ajfent, they occafion divorce,,
where fuch is the intention. Thofe expreffions maybe conftrued-
into’a denial o f the requeft, on account that “ Go!” may mean “ quit
“ thus fpeaking ;” andin like manner “ Get up!” may mean “ Be
I “ gone! and do not talk thus and the fame of “ veil yourfelf ! ” as a-
■ direftion to put on the veil fometimes imphes. an order to go away;-,
7 wherefore