tcntion.— The fame difference of opinion obtains in all expieffions of
divorce ufed towards-a {lave, whether expreß or implied, according to
what is alleged upon this head by the followers of Shafe'i, whofe argument
herein is, that the fpeaker intends a thing which the expref-
fion he ufes bears a conftruftion of, becaufe between pofleffion by
marriage and pofleffion by right [namely, by bondage\ there is a relem-
blance, as they both amount to fubßantial pofleffion; the latter is
evidently fo.;— and the former is alfo fuch in effect, and not of the
clafs of ufufruttuary pofleffions, (whence it is that permanency is one
' of its eflential conditions, and that rendering it temporary annuls it,)
for i f it were merely an ufufruftuary pofleffion, like hire, it would not
be annulled by reftrifting its duration to any particular time; and the
Sj e jec t of a fentence of divorce in the one cafe, or of manumiffion in
the other, is to deftroy the right of the proprietor, (whence it is that
the fufpenfion of it. upon a condition is approved,) but it does not
go to efiablijh any thing, fince if fuch were the cafe fufpenfion
would not be approved, becaufe the fufpenlion of an eftablilhment of
pofleffion upgn a condition (as in fale, where a man fays, “ I will fell
*“ fuch-an article provided the pilgrims arrive, ) is difapproved.
O b je c t io n -— Ittdk is an eß ablijhment o f power, not a diffolution
of it, whence it is that its-effefts take place, fuch as competency in
authority and in evidence, and fo forth; fo that this does .not refemble
■ divorce, which is purely of a deftruftive nature.
R e p l y .— Ittdk is a deftruftion of property; but the aforefaid ef-
fefts are eftablifhed by it for a reafon which had previoufly exifted,
namely, the flave’s being in an opprefled ftate.— No w ’there being this
refemblance between divorce and manumiffion, expreffions of emancipation
and freedom may be figuratively ufed for divorce, which accordingly
takes place where fuch is the intention, and fow ce verfa.—
Our doctors, on the other hand, argue that the perfon here mentioned
.(fuppofing the emancipation o f the flave to have been his intention)
has meant and intended a thing which the words he ufes do not bear
the fenfe of, becaufe the term Ittdk, in its literal fenfe, means “ en-
“ dowittg
“ dowing with power f and T'alak “ the removal o f reftraint;" and a
flave is a dead matter, transferable by fale or otherwife, and incompetent
to any independant, aft ; but by virtue of Ittdk he becomes
alive, and capable of afting for himfelf ;— whereas a wife, on the contrary,
is already pofl’efled o f all her natural rights and competency,
under the reftraint of marriage only, which, in fome particular in-
‘ftances, (fuch as going abroad, and fo forth,) debars her from the ex-
ercife of them ; but this reftraint being removed by Taldk [divorce,]
her independant rights, which were before obfeured under the matrimonial
fubordination, but not annihilated, become again apparent:
now it is evident that the eftabliljiment of a new right in any perfon
is a more forcible aft than the fimple remtmal o f reftraint in a
right already exifting ; and fo alfo pofleffion by right is o f a more
abfolute nature than pofleffion by matrimony ; and hence the deftruc-
tion of the former is a more forcible aft than that o f the latter-, and
any word ufed in an implied fenfe admits a conftruftion of equal or of
kfs_ weight than its literal meaning, but not of greater ; whence it
follows that I “alâk [divorce] cannot figuratively be^taken ■ as intending
manumiffion, although the reverfe of this be legal and
valid.
If a man fay to his flave “ you are equal to a freeman," yet he is-
not emancipated, unlefs fuch be the intention, becaufe the term equal
is, in common ufe, aflociated with a variety of ideas, fo that its fenfe,
as expreffive of the quality of freedom exifting in the perfon addreffed,.
is dubious..
If a man fay to his flave “ you are not otherwife than free,”
fuch flave becomes emancipated, becaufe the exception thus aff
fixed to a negative amounts to a confirmation of the affirmative.
If a man fay to his flave “ your head is the head o f a freeman,”
he is not emancipated, becaufe this is merely a comparifon, expreffed
with