48 s M A N U M I S S I O N . E 6 o k V .
provided both
are upon an
equal footing
with refpedl
to their claim.
fpedlto the claim itfelf; and, although parentage be indiviftble, yet there
are effedls attending it which are of a divifible nature, (fuch as inheritance,
and fo forth;)— hence, fuch of thefe effedts as are divifible are efta-
blifhed with refpedt to both, in the manner of divifion, and fuch of them
as are indiviftble mu ft be determined to each of them refpedlively, in toto,
and as if he had no partner.— 'What is now advanced relates to a cafe
where the partners ftand in no degree of affinity to each other, and are
both Mujfulmans:— but where they happen to be father and fa n ,-—or
one of them a Mujfulman and the other a Zimmee,— and both lay claim
to the child born of the female {lave as aforefaid, the decifion mull be
given in favour of the father, (in the former cafe,) or of the Mufful-
man, (in the latter cafe,) becaufe the father’ s claim preponderates, in
virtue of his right over his fon’s property; and the Mujfulman % faith
gives him a preference to the Zimmee.— As to the circumftance o f the
prophet expreffing his approbation in the cafe of AJfdma, (as cited by
Shafei,) it is to be accounted for from the infidels fcoffing, and calling
in queftion AJfdma % birth, their feoffs being terminated by the decifion
of a phyfiognomift, which caufed the prophet to exprefs his
pleafure.— It is to be obferved that, where the claims of both partners
to the child are admitted, the mother becomes Am-Walid to both,—
becaufe, where the claim of both is approved, and the child is decreed
to belong equally to each, it follows that the mother is the Am-Walid
o f each, and upon each is incumbent one half o f the A kir to his copartner;
and each is, in every refpedt, upon an equal footing with the
other.— It muff alfo be remarked that the child is entitled to receive,
from the eftate of each partner, the full inheritance of a complete child,
becaufe each has, in his claim, made an acknowledgment in the
child’s behalf to this effect, which is a proof in his favour.— And the
two partners are entitled to receive, from the eftate of the child, the
full inheritance of a father, fince they, are both upon a footing with re-
fpedt to the caufe of inheritance,— in the fame manner as where two
perfons advance evidence refpecting a third perfon of unafeertained
parentage, by each declaring— this is my child."
I f
C h a p . VII. M A N U M I S S I O N .
If a perfon have carnal connexion with the female {lave of'his Mokdtib,
and fhe bring forth a child, and the perfon abovementioned
claim it, in this cafe (provided the Mokdtib confirm the claim) the
parentage of the child is eftablifhed in that perfon,— This is the doctrine
of the Zdhir Rawdyet.— It is recorded, from Aboo Toofaf that
the confirmation of the Mokdtib is not 'requifite, in the lame manner
as that of the fon is not required where the father lays claim to his
fon’s female (lave.— T h e principle upon which the Zdhir Rawdyet
proceeds is, that a mafter has no power of adtion over his Mokdtib's
acquifitions, fo long as he does not attain fuch power by the Mokdtib's
inability to fulfil the contrail of Kitdbat, or by his breach of that
contrail:— contrary to the cafe offather and fen , as a father has an un-
difputed power of adlion over his fon’ s property; wherefore they are not
analogous cafes.— And here the mafter is relponfible to his Mokdtib for
the A kir of the female flave, as he has no ailual property in her until
after carnal connexion; becaufe he had a certain right in her, [in virtue
of her being the flave of his Mokdtib J[ which right is o f itfelf fufficient to
the admiffionof th e claim ofoffspring,w h e n c e there is not any neceffity for
confidering his property in her to have exifted previous to the embrace.
In the fame manner, he is relponfible to his Mokdtib for the value of
the child, becaufe it ftands as the child o f a Magroor * ; fince the mafter,
in having carnal connexion with the flave of his Mokdtib, proceeded
upon a prefumptive proof, namely, that of her being the property
of his property,“(aSthe Mokdtib• {s' his property,)— and where
he (under a perfuafion founded upon prefumptive proof) has carnal
connexion with the fa v e , it is not fuppofed that he is confenting to
his child being a ylave: hence the child is made free, in return for the
* Magroor literally fignifies a perfon who is under a deception.—In the language of the
law it is applied to a man holding carnal intercourfe with a woman whilft under a mifeon-
ception with refpe& to his right in her, or her fituation:—for inftance, a mafter of a female
Have marries her to a man who conceives her to be free j in which cafe, if lhe has a child by
her hufband, (which would, in common courfe of law, be a flave to the owner of the mo-»
ther) the father has a right to inflft on purchaflng his child’s freedom.
• Von. I. R r r
48 ?
The parentage
of a
child, born of
the flave of
a Mokatib is
eftabliihed in
the Mokatib1 %
mafter, if he
claim it.
value ;