cafe, divorce irreverfible enfues from thofe expreffions.— In reply to
the affertion of Shafei, we obferve that thofe expreffions are not pofi-
tivelv implications,, fince each, of them may alfo be ufed in its own
literal fenfe:— and as to what he further alledges,, that “ the intention
is a condition of their effect,” (thence inferring that they are undoubtedly
implications of divorce,) the inference is not admitted, be-
caufe the intention is made a condition for the purpofe of afeertaining
one of two fpecies o f feparation; and it is thus made a condition for
the purpofe of afeertaining one of two forts of a feparation, which is a
feparation from marriage, and not for the purpofe o f divorce taking
place: with refpect to what Shafei further advances, that “ the divorce
“ occafioned by any of thofe expreffions is incomplete in point of
“ number,” (thence inferring that they are implications of divorce,)
we reply that the paucity of the number o f divorces is not on account
of thofe expreffions being implications of divorce, but becaufe divorce
is eftablifhed on account of the connexion of marriage becoming dif-
folvcdv that is to fay, on account of thofe expreffions the tye is dif-
folved, and divorce fignifies the diflolution of a tye-, wherefore divorce
is, neceffitrily eftabliffied; the inference, therefore, is that the taking
place of divorce is involved ; but not that the aforefeid- expreffions are
■ implications of divorce:— and with refpect to what he further fays,
that “ if the huffiand intend three divorces from the u'fe: of any of
“ thofe expreffions, three take place accordingly,” (inferring that
they are implications:of divorce,) we reply that the intention of three
divorces from thofe expreffions is, approved only as three divorces is
one fpecies of feparation, (for feparation is of two fpecies,— the mild
and the rigorous * ,) and, where there is no intention, the leaf! forcible
Is eftabliffied.— It is to be obferved that an intention of two divorces is
* By the mild feparation is meant that fpecies. of complete divorce which admits of the
hufband remarrying his repudiated wife without the neceffity of her intermediate marriage
with' another.. By the rigorous feparation is meant that fort of complete divorce which lo.es
not admit of the man remarrying his repudiated wife until fhe fhall have been married to,
enjoyed, and repudiated by another man. Th e y have been already, fully explained.
not approved with our do&ors : contrary to the opinion of Ziffer : but
this has already been treated of.
If a man fay to his wife “ count!— -count!— count!” and afterwards
declare that by the firft of thefe words he meant divorce, and
by the others the repetition o f the woman*« co-urfes [requifite to its
completion,] his declaration is credited in point of law, as he appears
to have intended thefe laft words in their true fenfe, it being cufto-
mary for .a hufband, where he divorces his wife, to defire her to .count
the courfes neceflary to the completion o f her JEdit;, and hence apparent
circumftances bear evidence to h-is intention.: but if he were to
confefs-that in thefe laft words he had no particular intention, three
divorces take placé, becaufe, From his intending divorce by the firft
word, it follows that he repeated it a fécond and third time, in a. fitu-
ation where divorce is, the lhhject of difeoutfe, and this fituation
proves his intention in thefe repetitions to be divorce alfo ; wherefore,
if he were to deny this intention, ye tiie is not credited, circumftances
bearing evidence againft him : contrary to where he declares that he
had no intention of divorce in any of the three words, for there divorce
does not take place at all, becaufe circumftances do not tend to disprove
his declaration : and contrary, alfo, to where he declares divorce
to be his intention in the third-word, but not in either of the two preceding,
in which cafe no more than-one divorce takes place, becaufe,
as he does not put the conftruction of divorce upon the two preceding
words, it does not appear that divorce was the fubject of difoourfe at
the period of his Speaking the lajl.— It is to be obferved that the declaration
of the fpeaker in denial of his intention is not to be credited,
unlefs it be given upon oath, becaufe he relates what, having paffed
folely in his own mind, cannot be known to any other perfon,— and
hence he -is the Ameen, or inquifitor, -with refpeft to the intelligence
he gives; and the declaration -of .an inquifitor is credited upon oath.