with an ellipfis of the comparitive term “ lik e -'' hut a have is emancipated
by his mailer faying to him “ your head is a free head,” be-
caufe his freedom is fully acknowledged by that phrafe, fince from the
head the whole perfon is neceffarily underftood.
S E C T I O N .
No perfon Jp a perfon become poffelied of a flave who is his relation within
"areiatlT the prohibited degrees * , fuch (lave by that aft acquires his freedom.
Wrdbibited This is recorded as an ordinance of the prophet, and comprehends all
degrees. kindred within the prohibited degrees* whether Handing within the
parental connexion, inch as fathers, mothers, fions, and daughters,, or
indépendant thereof, fuch as brothers, and fo forth.— Shgfei reftrifts
the operation o f this rule to relations of the itrii chits only. His argument
is that the eftabliffiment of manumiffion independant of the çon-
fent of the proprietor is contrary to analogy ; and as the fraternal and
other connexions are not of equal weight qr moment with, the paternal,
the cafe does not admit that the former thould be connc-fted with
the latter, either by anafogy^ % by arguments drawn frorn the f^cted
writings— whence it is that i f a Klokâtib were to, as qflaye,
his brother or uncle, fuch relation does not become a Mokâtib in conformity
to the condition of the purchafer, but ft ill continues an abfo-
lute /lave , tyhereas, if a Mokâtib were to purchase bps father or child,
the perfon pujehafed is, no longer q flave, ' but becomes a.Mokâtib in
conformity to the condition .of the purchafer, and % tendered fr e t by
the Mokâtib himfelf obtaining his freedom in confequence of the fulfilment
of his contraft o f Kitâbat.— T h e arguments o f our doftors are
* See Matrimony, Chap. II.
twofold;
• twofold;— f ir s t , the ordinance recorded of the prophet, as already
dated, which comprehends all degrees of kindred under the deferip-
tion of prohibited-, s e c o n d l y , the reafon of.a parent or child being
rendered fr e e , in the prefent cafe, is the affinity which occafions prohibition,
and a reftriftion to the parental degree of kindred is nugatory
and inadmiffible, becaufe the prefervation of any connexion
which occafions prohibition is enjoined as, indifpenfable, and to break
it off is forbidden,— (whence it is that a man is required, i f nec.eflàry,
to furniffi fubfiftence to every relation within the prohibited degrees,
and alfo, .that marriage with them is forbidden,) and the fame reafon
applies in degrees of kindred not parental, fuch as the brother or uncle.
It is to be oblerved that this rule extends to infidels within the Muf-
fulman territories, as well as to Mujulmans, and alfo to minors and
lunatics, the reafon of prohibition 'above mentioned applying equally
to all thefe deferiptions.— And in reply to what S h a ft has* advanced
in fupport of the doftrine of his feft with refpeft to Mokdtibs, it is to
be remarked that where a Mokatib purchafes, as a flave, his brother,
or any other relation o f the more remote degrees, (fuch as his Uncle or
aunt,') the perfon purchafed is not rendered a MokâtW, becaufe the
power of a Mokatib over his property is not of a full or complete nature,
fo as to enable him to perform the aft of emancipation ; and the
prefervation of a kindred connexion is incumbent and enjoined only
where fuch a power exifts : but the cafe is otherwife where a Mokatib
purchafes, as his flave, his parent or child, who thereupon becomes
alfo a Mokâtib-, for the liberation of parents and children mull be con-
fidered as one defign of the contraft o f Kitâbat,— becaufe, as the intention
of a Have* in entering into fuch a contraft, is (eventually) to
procure his own freedom, fo is it to procure that of his parents or children
alfo, their bondage being as grievous and degrading to him as. his
own ; and this being the cafe, the fale of the parent or child of a
Mokâtib is forbidden, and they become free on the payment of the
ranfom, in order that all the ends of the contraft or Kitâbat may be
obtained.— Aboo Haneefa makes this rule extend to the fraternal as
VoL - I- K k k Weli