where it is referred, either to the right of property itfelf, or to the
caufe of the right; and not one of thefe is found in the piefcnt cafe.
There is no aBual right of property, evidently; nor is there any refer-
rencc to the right of property, as the vower did not fay “ It I become
“ poJWrf o f a female Have, and make that Have my concu bin enor
is there any reference to a caufi of right, as the vower has referred only
to concubinage, and that is not a caife of right of property in a Have,
becaufe Haneefa and Mohammed define concubinage [fefirree] to
iignify merely “ a man’s keeping his flay.e up, and providing a dwel-
“ ling for her, and preventing her from going abroad, and having
“ carnal connexion with her, whether he claim ttie children born
“ of her or not.;” {Aboo l'pofaf holds that the claim of children is
alfoa.eondition, as a concubine is, in general ufage, one whofe children
are claimed;)— and no one of thefe particulars is a caufe of right
of property.— Yet a right o f property being requifite to concubinage,
mull, in the prefent inftance, be taken for granted, as an effential, from
the neceflity of the concubinage (which is the condition) being legal: this
right of property, however, is taken for granted only fo far as is necef-
fary, and does not appear with refpedt to the confequence, (namely,
emancipation,) becaufe whatever is eftablifhed merely from necefity, does
not pervade beyond the point of neceflity. With refpedt to the example
o f divorce, cited by Ziffer, it may fee replied that the confe-
quence induced (namely emancipation) is there admitted only on account
of the VOW being made with refpedt to aB,ual property, (for
the Have is at the time the property of the voW.er;) and the
marriage, which is there taken for granted, qs.a neqeflkry inference,
is fo only with refpedt fo the condition, (namely, divorce,) but not
with refpedt to the confequence-, infomuch tfeat if the man were to
fay to the ftrange woman “ if I divorce you, you are divorced thrice,”
and he afterwards marry her, and divorce her, yet three divorces do
not take place, as the condition had not been declared either under an
aBual right of property, or in reference to fuch right, or to the caufe
o f
o f it :— this cafe, therefore, is analogous to the cafe in queftion, for
this reafon, that in both of them the eftablifhment of the condition is
merely for the purpofe of admitting that, but does not pervade to the
admiflion of the confequence.
If a man fay “ every perfon my property is free,” his Am-Walids,
and Modabbirs, and Abids, all become free accordingly, becaufe the
reference to a right of property with refpedt to them is complete, as
all thefe are the adtual property of the fwearer : but his Mokâtibs do
not. become free, unlels fuch be the intention, becaufe abfolute
pofl’eflion does not apply to a Mokâtib, whence it is that his matter is
not the proprietor of his acquittions, and alfo that it is not lawful for
a mafter to have carnal connexion with his Mokâtiba: contrary to a
Madabbira, or Am-Walid:— reference to a right o f property, therefore,
with refpedt to a Mokâtib, is incomplete and deficient, for which
reafon intention is_ requifite.
I f a man, having three wives, fay .of them “ this one is divorced,
“ or this, or this,” divorce takes place upon the laft wife; and it remains
in the choice of the hufband to declare and fpecify which one of
the’ other two fhould become divorced, whether the fir ß , or the
fécond-, becaufe the vow, as above expreffed, is the fame as if he had
faid “ one o f you two is divorced,— and alfo this one.” — T h e ground
of this is found in the grammatical eonftrudtion of thofe words in the
Arabic.— In the fame manner, if a mafter fhould fay, with refpedt to
three flaves, “ this one is free,— or rd/j one,— or this one,”— the laß
becomes free, and it remains at the option of the mafter to fpecify
which of the others fhall be free, the fir ß or the fécond.
A general
vow of freedom
to flaves
includes
every deferip-
tion o f them*
Café of a vo w
of divorce indefinitely
ex-
preffed.
C H A P .