Cafe of indefinite
emancipation
of one
o f tixo female
Haves.
a valid fale and an invalid fale, a fale with feizin and a fale without
ftizin, a fale with a condition of option, and a fale without a condition
of option,— are all alike, as the arguments adduced equally apply to
all thefe cafes.— It is further recorded, as an opinion of Aboo Toofaf,
that the expofure of the {lave for fale falls under the.lame rule as aBual
fa le ; and alfo, that the difpofal of him by free gtft or alms (with delivery
and feizin ) -is the fame as by fa le ;— all thofe affording proof that
the declaration o f the mafter was intended to effedt the freedom of the
other {lave, as much as. the aElualfale.
If a'man, addreffing himfelf to his two female {laves, lhould fay
“ one o f you is fr e e ," and afterwards have carnal connexion with one
of them, yet the other is not emancipated, according to Haneefa.—
The two difciples hold that the other thereupon {lands emancipated,
becaufe the aft of coition is not lawful but in a property; and one of
the two is fr e e :— now the commiffion of the aft with one of them
evinces that the mailer flill confiders her as his property; and hence
it is manifell that the other is emancipated: and decrees pafs accordingly.
Haneefa argues that the mailer’s right of property in the {lave
with whom he has carnal connexion Hill remains, fince he emancipated
a Have undefined, whereas {he is fpecified, and the carnal ufe of
her is lawful to him, fo that his connexion with her does not afford
any proof of manumiffion taking place; on which ground it is that
Haneefa holds the carnal ufe o f both to be lawful to the mafter— .
T h e foundation of this is, that the manumiffion of one o f tw o flaves
does not take place until definition be obtained, whence ,It refembles
Ittak fufpended upon a condition, (as this, when pronounced in behalf
of a flave undefined, remains fufpended upon definition,) and confe-
quently, until fuch definition takes place, the mafter is at liberty to
have carnal connexion with both his female flaves. But decrees are
not paffed upon this principle.
If
I f a man fay to his female flave “ if the firft child you bring forth ^ ^ ” a0V
“ be a fon, you are free," and {he afterwards brings forth twins., a a female flave
J J . , ■ - , , - - , • conditional
boy and a 'g irl, and it be not known, which or them was tint born, in upon her
this cafe the mother and the daughter become emancipated in one h a lf bearinS a1
each; but the fon is not freed at a ll; becaufe there are two circum-
ftances by which the mother and daughter are liable to be refpeftively
affedted;— under one they become emancipated in toto, and under the
other they remain in toto in bondage;— in other words,- they would
both become free, fuppofing the boy to have been born firft, (the mother,
by the occurrence of the condition, and the daughter, as a dependant
of her mother, who is free on the inftant of the boy’s birth,)
and neither of,them would be in any refpedt emancipated, fuppofing
the daughter to have been firft born, for in this cafe the condition of
manumiffion would not exift; the h a lf of the mother and daughter is
therefore emancipated, and they are refpectively to perform labour for
the remaining half-, but the fon, not beingin any refpedt liberated, continues
a flave. I f the mother lhould make a declaration (during the
daughter’s nonage) pleading that the fon was born firft, and the mafter
deny this,-'his affertion, delivered upon oath, muft be credited, becaufe
he denies the occurrence of the condition of manumiffion, and if
a defendant fwear, and the plaintiff be deftitute of proof, his plea is defeated
: but if the mafter refufe to make oath, the mother and daughter
become emancipated, becaufe, if the mother were to claim her daughter's
freedom only, her claim would be credited, as her daughter's
advantage only appears to be confulted; and the mailer’s refufal to
fwear is to be taken as an acknowledgment of the freedom both of mother
and daughter, whence they are both emancipated. But i f the
daughter become an adult without advancing any claim, on her own
behalf, and the cafe, in every other refpedt, be the fame as before
ftated, then thsmother alone Hands emancipated by the mailer’s refufal to
fwear, and not the daughter-, becaufe the claim of a mother for the freedom
of an adult daughter is not admitted with refpedt to fuch daughter ;
and the effedt of a refufal on the part of a defendant to fwear, depends
-j upon