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C H A P . I.
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forms under JVIa r r iag e is contracted,— that is to fay, is effected and legally
which marriage
may be
contracted.
- «Mi
iliiil
confirmed,— by means of declaration and confent, both expreifed in
the preterite, becatffe although the ufe of the preterite be to relate
that which is paji, yet it has been adopted, in the law, in a creative
fenfe, to anfwer the neceffity of the cafe * .—'Declaration, in the law,
fignifies the fpeech which firfi; proceeds from one of two contracting
parties, and confent the fpeech which proceeds from the other in reply
to the declaration.
M ar r iag e may alfo be contracted by the parties expretling them-
felves, one in the imperative, and the other in the preterite-, as if a
man were to fay to another “ ContraCt your daughter in marriage to i
“ me,”— and he were to reply “ I have contracted” \jny daughter
to you,-]— becaufe his words' “ ContraCt your daughter to me” are
expreflive of a commiffion of agency, empowering to contract in marriage;
and one perfon may be authorized to aCt on both fides in
marriage, (as fhall be hereafter explained:;) wherefore the reply: of
the father, “ I have contracted,” ftands in the place both of 'declaration
and confent,— as if he had faid “ I have contracted, and I have
“ confented.”
M ar r iag e may aifo be contracted by the ufe of the word N ik-
k AH, or marriage,— as if a woman were to fay to 'a man “ I have
“ married myfelf to you for fuch a fum of money + ,” and the man
•were to reply “ I have confented:” and, in like manner, by the
word fazw eej, or .contrasting in marriage, as if a woman were to fay
to a man “ .I have contracted myfelf in marriage unto you,” and fo
* Becaufe the prefent and future being expreffed, in the Arabic language, under ml
form, a contrail expreffed in the prefent would be equivocal.
-j- Meaning her dower.
forth:
forth:_and fo alfo, by the word Hibha, or g ift* , as i f flie were to
fay “ I have bellowed myfelf upon you :” and likewife, by the word
famleek, or confignment,— as if Ihe were to fay “ I have configned
“ myfelf over to you :” and fo alfo, by the word Sadka, or alms-gift,
as if {he were to fay “ I have given myfelf as an alms unto you.”—
Shaffêi is of opinion that marriage cannot be contracted except by the
words Nikkah and Tazweej, becaufe the term Tamleek (for inltance)
does not bear the conllruCtion of matrimony either in a literal or
metaphorical fenfe;— evidently not in a literal fenfe,- this term never
being ufed to exprefs marriage; nor in a metaphorical fenfe, becaufe
a metaphor is to be underltood in a particular fenfe only from the propriety
of its application, which is not the cafe here, the terms Nikkah
or Tazweej implying óonjundion, (as was before obferved,) and between
the polfeflbr and the pofifeffion no Conjunction whatever exills-.
The argument of our doctors, in this cafe, is that confignment operates:
as the principle Of a right to a carnal conjunction in the fubjeCt
Of it, in virtue of a right in thé-, perfon, • (aè in the cafe o f female
flaves-,') and the right to carnal conjunction-is alfo eftabliihed by matrimony
; wherefore, as marriage and confignment thus appear to be
both principles operating to the lame end, the latter may be metaphorically
taken for the former.
Ma r riag e may be contracted by the ufe of the term Beeya, or
fa le ; as if a woman were to lay to a manr “ I have fold myfelf into
“ your hands,” and this is approved, becaufe lale operates as the principle
of a right in the perfon, and a right in the perfon is the principle
of a right to carnal conjunction, whence the propriety of the
metaphorical application of fale to matrimony.
A ccording to the Rawdyet Saheeh, marriage cannot be contracted
by the ufe of the term IJhdrit, or hire,— (as if a woman were to lay,
* This, and the two following terms, are fuch as are ufed where the woman does not
ffipulate any dower.
V ol. I. l “ Ihave.