A claim o f o ff
Spring ad-
vanced by one
of two partners
in a female
Have
eftablilhes the
parentage in
him, and readers
her his
Am-Walid;
■ of marriage.— T h e reafon why the value of the child is not due is that
it is free, ab origine, in the mother s womb, becaufe the father had
obtained a right in the female {lave previous to carnal connexion, in the
manner of fucceflion * , wherefore the child appears to be a child of
the Jlave by her proprietor .— But if a grandfather were to have connexion
with the female {lave of his grandfon, the Ion [the father of the
latter] being living, the parentage of the child born of her is not efta-
blifhed in the grandfather, becaufe he has no right or authority over
the female Have during the exiftence of the intermediate relation.— If,
however, this intermediate relation be notexifting, the parentage is, in
that cafe, eftablifhed in the grandfather, as a grandfather's right over
his grandfon's property appears upon the demile of theyè/i. And here
it is to be obferved that the infidelity or bondage o f the father [the intermediate
relation] is the fame as his death, [in removing the bar to the
grandfather's right of ufufruft over his grandfon’ s pofleflions,] fince
thefe two predicaments are of either of them terminative of authority
in the fame manner as death.
If a female {lave, held between two men in partnerlhip, bring
forth a child, and one of the partners claim it, the parentage is eftablifti-
ed in that partner; becaufe parentage being eftablifhed in him, with
rcfpeet of one half, in virtue of his moiety o f right in the mother,
the remainder is neceffarily fo, parentage not being capable of partition,
as the caufe thereof (namely, conception) can have proceeded from
one father only : and the female {lave becomes no. Am-Walid to the faid
partner, becaufe claim o f offspring (in thé opinion of the two difciples)
is indivifible.— Haneefa contends that the female {lave becomes Am-
Walid m the {hare of the above partner only, who afterwards obtains
pofleffion of the {hare of the other partner, by paying him a compen-
* The father is, in virtue of his parental rights, inverted with authority to the ufe of all
his fons pofleffions, but not to the ieftruttion of them ; and hence it is that, having dejiropd
his fons property in his flave, by rendering her dm-Waltd, he is made refponfible to him for
her value. .
lation,
fatien, (as an Am-Wdlid is capable o f being obtained as property,) and
he is moreover refponfible to his partner for an half A kir, as having
held carnal Connexion-with a copartnerfhip flave, which therefore appears
to be committed upon the property o f another. But he is not refponfible
for the value of the child, becaufe the parentage is eftabliflied
in him from the inftant of conception, and hence the other never had
any authority of pofleffion over it, fo as to require his being refponfible.—
If both partners fliould claim the child at once, its parentage
is 'eftablifhed in both.— S htfei fays that, in this cafe, the parties muft
have recourfe to the judgment of a phyfiognomift,'and whomfoever
he may adjudge to be the father, by fimilitude of features, in him the
child’s parentage muft be eftabliflied, becaufe it is impoflible to conceive
the parentage of one child from two fathers-, fince one conception
cannot proceed from the feed o f two different men; the point therefore
muft be decided by comparifon; efpecially as the prophet, in the cafe
bf Affama, expreffed his approbation of this mode of decifion.— Our
dodtOrs reft their opinion, in this point, upon the authority o f Omar
the Khalif, who is recorded to have written, concerning a cafe of this
nature, to the Kazee Sareeh * , as follows— “ I f they cannot produce-
“ any proofs in fupport of their aflertion, you muft decline pafling any
“ judgment upon the cafe; but i f they refpeftively produce their
“ proofs, you may then alfo produce your decifion; namely, that i he
fa id child is to be regarded as the offspring i f b o t h , and has a right in
“ each refpediively, as they alfo both have in him; but i f one o f the partners
“ happen to outlive the other, he is the foie heir o f the child.'' This fen-
tence Omar wrote in the prefence of a number of the companions of
the prophet, none o f whom controverted i t : and the fame is alfo related
as the opinion o f Alee.— Another argument of our doctors, in
proof of their opinion, is that as both the claimants, in relpedt to the
foundation of their claim, (namely, a property in the female flave, and a
right in the child,) are exactly upon a level, they are likewife fo in reor,
if the
claim be advanced
by
both partners,
the parentage
is eftablifhed
in both.
* A t that period chief rhagi (Irate of 'Koofa, a city o f Chaldea,