Divorce vowed
on condi*
tion of the
birth of a
child takes
place although
the
child beftill-
born.
F reedom
vowed in favour
of achild
that may be
born of a female
Have
takes place on
her firft Itve-
born child.
v o w s . B ook VI.
C H A P . VIII.
Of Vows in MammiJJion and Divorce.
I f a man fey to his w ife * “ whenever you bring forth a child,
“ you fhall become divorced,” and fhe fhould afterwards be delivered
of a dead child, divorce takes place upon her;— and in the feme manner,
if a man fey to his female Have “ whenever you bring forth a
child, you fhall become free,” and fhe fhould afterwards be delivered
o f a dead child, fhe becomes free;— becaufe the condition, (namely
childbearing) is fulfilled, as an infant, though Hill-born, is yet a£tu-
ally a child, and it is alfo termed a child by general ufage. Regard is
moreover had, in law, to fuch a birth, whence it is that the Edit is
accomplifhed by i t : and the difcharge which follows the birth o f a
dead child is termed N iff as, as well as that which follows the birth of
a living child: and in the feme manner the mother of fuch a child,
where fhe happens to be a ffave, and her owner acknowledges the
child, becomes an Am-Walid.
If a man fey to his female flave “ whenever you bring forth a
“ child, that child is free,” and fhe be afterwards delivered, firft of
one child dead, and again o f another child living, in this cafe the living
child alone is free,— that is to fey, that one is free, but no other who
may be born afterwards.— This is the doftrine of Haneefa.— The two
difciples fey that no child whatever is emancipated, becaufe the con-
* In this and all the correfponding cafes, the f o r m o f the v ow, although omitted here
for the fake o f brevity, is always to be underftood as preceding the fentence— thus “ BY
il G od , w h e n e v e r y o u b r in g f o r t h , & c .” or w I v o w , w h e n e v e r , & c . ”
dition
CflAP. VIII. v o w s . 537
dition o f the vow has already taken place in the birth o'fthe dead child,
for the reafons Hated in the preceding cafe; and hence:the vow isdif-
folved, without its confequence,-— (that is, the vow is accomplifhed
and done away, without its cqnfequence taking place,)— as the diflolu-
tionof a vow does not depend upon the induction of its confequence-
thus if a man were to fey to his wife “ i f you go into fuch a houfe,
“ y ° u are divorced,” and Hie enter that houfe after having been repudiated
by a complete divorce, and her Edit be part, the vow is dif-
fplved without its confequence; and fo alfo in the prefent infiance, as
a dead child is not a proper fubject of manumiffion.— The argument of
Haneefa is that the term Walid [a child] as expreffed in the vow, although
it be applicable to one born dead, yet in the prefent cafe is re-
ftri&ed to the defcription of living, becaufe the defign of the vower is
to beflow freedom upon a child, and as this is a power by virtue of
which the defpotic authority of others over the perfon endowed with
it is removed, it cannot poffibly be eflablifhed in one who is dead.
The term Walid, therefore, expreffed in the vow, is reftrified to the
living defcription; in the fame manner as where a mafler fays'to his
female Have “ whenever you are delivered of a living child, fuch
“ child is free,” and the Have is delivered of a dead child, and afterwards
produces a living one;— in which cafe this living one i$ fre e ;
and fo here hkewife. It is otherwife where divorce or manumiffion has
been fufpended upon the birth o f a child, for there the divorce or ma-
numiffion fo fufpended takes place; as in this infiance it is not requifite
that the birth be reftricted to the living defcription, fince the life of
the child is not neceffery to the divorce o f the wife, or the manumiffion
of the Have.
If a man fay “ the firfi flave that I purchafe is free,” and he
fhould afterwards buy a flave, fuch Have is free, becaufe the word
fir fi points to the prior Angle flave, which applies in this infiance;_fi
but i f the vower, in fuch a cafe, were to purchafe two Haves together,
and afterwards a third, none o f thefe flaves is free, becaufe Angularity
R f l Z z z does
Cafe o f a vow
of freedom to
the fir jl pur-
chafed Have»