Cafe o f a man
divorcing a
wife who is a
{lave, and
then purchasing
her.
Mifcellane--
ous cafes.
If a man marry a female Have, and afterwards divorce her, and
then purchafe her,- and the be delivered of a child within lefs than fix
months from the day of purchafe, the parentage is eftablifhed in him;
but i f fhe be delivered after fix months, the parentage is not eftablifhed ;
becaufe, in the firft-inftance, the child is confideredas born of a woman
under E d it, -conception appearing to have taken place before pur-
chale; but, in -the fecond inftance, it is regarded as flave-born, as the
length-of the term of pregnancy here admits of conception being referred
to a time fubfequent to purchafe; and the child thus appearing
to be born (not of a wife, but) of a Jlave, his acknowledgment' is re-
quifite to the eftablifhment of its parentage.— What is now advanced
proceeds upon a fuppofition of the Have being repudiated by a Angle
divorce, reverfible or irreverfible, or by Khoola: but if fhe be repudiated
by two divorces, the parentage of the child is eftablifhed, i f it be
born within two years from the date of .the divorce, becaufe in this cafe
die is . rendered unlawful to her hufband by the rigorous prohibition,
whence the pregnancy can be referred only to a time previous to divorce,
fince, under fuch a circumftance, fhe is not rendered lawful to the
man by his fubfequent purchafe of her.
I f a man fay to his female flave “ if there be a child in your
“ womb it is mine,” - upon a woman afterwards bearing teflimony to
the birth, the flave becomes Am-Walid to that man, becaufe here
all that is requifite is to prove the child’ s identity, by fhewing that
“ fuch a woman has been delivered o f fuch a child,” — and this is fuf-'
ficiently afcertained by the teflimony of the midwife, according to all
our doctors. -
I f a man fay of a boy, this is my fen,” and afterwards die, and
the mother come declaringherfelf to be the wife of the deceafed, fhe muft
be confidered as fuch, and-the boy as his child, and they both inherit of
him. It is recorded in the Nawadir that this rule proceeds upon a favourable
vourable conftruflion of the law, for analogy requires that the woman
fhould not inherit, fince defcent is eftablifhed not only in virtue of a
valid marriage, but alfo of an invalid marriage, or of erroneous carnal
connexion, or of pofleffion by right of property, and therefore the
man’ s declaration that “ this is his Jon" does not amount to an acknowledgment
of his having married the mother: but the reafon for
a more favourable conftru£tion of the law here, is that the cafe fup-
pofes the woman to be one whole freedom and maternal right in the
child are matters of public notoriety, and the validity of a marriage is
afcertained by circumftances. But i f the woman be not known to be
free, and the heirs of the hufband maintain that fhe is only an Am-
JValid, fhe is not entitled to any inheritance, becaufe the mere appearance
o f freedom, (fuppoling this cafe to occur in a Mujfulman ter-
ritory,) although it defend the party from flavery, is not fufficient to
eftablifh a claim of inheritance.
C H A P . X IV .
Of Hizdnit, or the Care of Infant Children.
I f a feparation take place between a hufband and wife, who are pof- in eaft offe-
fefled of an infant child, the right of nurfing and keeping it ’refts with Paration>the
the mother, becaufe it is recorded that a woman once applied to the infant chii.
prophet, faying “ O, prophet of G o d ! this, is my fon, the fruit of
“ my womb, cherifhed in my bofom and fuckled at my breaft and
V ol. I. D d d I his
Eiffll
HfHl