Mud be contracted
in the
prefence of
witnefles.
Qualification
of a witnefs.
Perfons may
witnefs a
marriage,
whofe tefti-
mony would
not be received
in
other cafes.
“ I have hired myfelf to you for fo much;” )—-nor by Ibdhit, or per-
miffion; nor bj Ihldl, or rendering lawful; nor by Areet, or loan;
none of thefe operating as the principle of a right to carnal conjunction.
— Neither can marriage be contracted by the ufe of the term Wafee-
y a t, or bequeft; becaufe bequeft does not convey any right of pof-
feflion until after the teftator’ s death;— and as a contract of marriage
in exprefs terms, referring the execution of it to a period fubfequent to
the deceafe o f either of the parties, would be null, fo alfo, in the pre-
fent cafe, a fortiori.
Ma r r ia g e , where both the parties are Muffulmans, cannot be
contracted but in the prefence of two male witnefles, or o f one man
and two women, who are fane, adult, and Mujfulmatis, whether
they be of eftablilhed integrity of charaCt-er or otherwife, or may ever
have fuffered punilhment as flanderers.— The compiler of this work
obferves that evidence is an eflential condition of marriage, the prophet
having declared “ no marriage is good without evidence;” and
this precept is a proof againft Mdlik, who maintains that in marriage
notoriety only is a condition, and not pofitive evidence.— It is neceflary
that the witnefles be fr e e , the evidence of f.laves being in no cafe valid,
becaufe fuch are not competent to a Cl in any refpedt fu i ju r is : and it
is alfo requifite that they be of found mind and mature age, becaufe
minors or idiots are incapable of acting for themfelves; and it is like-
wife neceflary that they be Muffulmans ; the evidence of infidels not
being legal with reljpedt to Muffulmans.
T h e fe x of the witnefles is not an eflential condition of their competency,
infomuch that marriage may be lawfully contracted in the
prefence of one man and two women :— neither is the integrity of the
witnefles an eflential condition, infomuch that (according to our
doCtors) a marriage is valid if contracted in the prefence of two Fa/iks,
or unjuft perfons * .— Shafe'i maintains that the integrity of the witnefles
* Th e wcrd Fajik, which throughout this 'work is ufed in contradiftindiion to Adil,
has therefore been rendered, in the tranilation, unjujt, which is indeed the moft common
acceptation
nefies is an eflential condition, becaufe evidence is entitled to reverence
and refpedt, the prophet having faid “ pay reverence to ;witnefles ;”
and Fa/iks are not proper objedts of fuch reverence, but rather the
reverie.— T o this our doCtors reply that Fa/iks are competent to adt
for themfelves, and of courfe competency in evidence mufl alfo appertain
to them, lince they are not incapacitated from adting with
relpedt to others; a Fcfik, moreover, is capable of holding the office
of a Sultan or an Imdm, whence it follows that he is alfo capable of
becoming a Kdzee, or a witnefs.— A perfon who has fuffered punilhment
for flander, as being ftill poflefled of general competency, is allb
capable of bearing witnefs, fo far as merely reljpedts declaration and
confent in matrimony, but no farther, there being a politive prohibition
to the reception of fuch a perfon’s evidence, which, however,
admits c f exception in the prefent cafe; like that o f blind perfons,
or of, the children of the parties, whofe evidence, although not ad-
miffible in any other cafe, is yet allowed in marriage.
- If a Muffulman marry a female infidel fubjedt In the prefence of
two male infidel fubjedts it is lawful, according to Aboo Toofaf and
Fdaneefa. Mohammed and Zififer maintain that it is not lawful, becaufe
their teffimony, with refpedt to declaration and confent in marriage,
amounts to evidence, and the .evidence o f infidels regarding Muffulmans
is illegal; whence it is the lame in fadt as if they had not heard the
declaration and confent of the parties. T h e argument o f the two
elders, in reply to this objedtion, is, that evidence is required in matrimony,
not with any view to the afcertainitvent of a point o f pro-
Perty> (fuch as dower,) but merely in order to eftablilh the hulband’s
right of cohabitation, which is in this cafe the objedt.
If a man delire another to contradt his daughter (being an infant)
acceptaiion of the word; it muft, however, be underftood to relate to a perfon who
° , s ,ccorum ln behaviour and drefe, and fuch other inferior points, rather than to
one Who ,s afiually know ! to be dijhoneji.
L
Infidels may
witnefs the
marriage of
an infidel
woman:
the negotiai
tor of the con