8ó
Miiffulmans
may marry
female Haves.
A man al-
?rendy wedded
to a fr§e woman
cannot
M A R R I A G E . B ook II.
fentence, the words of the prophet may be rendered into merely a
negative remark, rather than a poftive prohibition.
I t is lawful for a Mujfulman, who is free, to marry a female flave,
whether fhe be a Mujlima, or Kitdbeea, although he be in circum-
ftances to marry a free woman— that is to fay, able to pay a dower,
and afford an adequate maintenance to fuch a woman.— Shafei fays
that a man cannot lawfully marry a Kitdbee Have, he holding that
it is not lawful for a freeman to marry any flave except of neceflity,
becaufe by fuch an aft he incurs the confequence of fubjecting a portion
of his body to bondage ; that is to fay, his feed (which is a
portion of his body) by entering the womb of a flave, is born in
bondage; neceflity, therefore, he holds can alone legalize fuch a marriage,
and confequently, that ability to pay the dower and maintenance
of a free woman prohibits a freeman from marrying a flave; but from
this rule he excepts Mujlima^ flaves. — ■ With our doctors, on the
other hand, marriage with female flaves'of every defcription is legal,
becaufe the text of the K or an , on which the-legality of marriage is
founded, extends- to all defcriptions of women, to flaves as well as to
thole who are free:— and, with refpefi to what Shafei objefts, that
■* ‘ by fuch an abl a man incurs the confequence o f fubjecling a portion of
■“ his body to bondage,” it may be replied that, by marrying a flave, a
man is only withheld from producing free children; but -it is not
thence to be concluded that he, de fa& o, fubje&s a portion of his body
to flavery, as this portion (to w it, his feed) is neither free nor other-
wife; and as a man is at liberty to abftaiu from producing the child
itfelf, (either by not marrying, or by marrying a woman who is barren)
it follows that he is certainly at liberty to abftaia from producing it in a
frate offreedom.
I t is unlawful for a man already married to a free woman to marry
a flave, the prophet having ifliied a precept to this effedl, “ Do not
“ marry a flaw upon [along with] a fr e e woman.” S h a f e i fays that
the
marry ijtave,
s
C hap. I. M A R R I A G E .
the marriage of a flave upon a free woman is lawful to a mart who is
a flave; and Malik likewife maintains that it is lawful, provided it be
with the free woman’s confent.— The above precept, however, is an
anfwer to both, as it is general and unconditionalmoreover, the
legality of marriage is a bleffing to males and females equally; but the
enjoyment o f it i s by bondage reftrifted to one half, infomuch that
flaves can have only two wives, whereas freemen may legally have
four, (as will be explained hereafter,) and flavery operating thus re-
fhictively upon males does fo equally upon females;—-upon the former
it operates by a reftrittion in point of number, as above; but fince,
with refpedt to females, this is impoffible, it has its effèdt by a re-
ftriftion in point of circumflances; for inftance, by reftricting the legality
of the marriage o f female flaves to certain particular, circum-
ftances, as in the prefent cafe, where it is admitted only under the
circumflance of the man not having any free wives.
A man may lawfully marry a free woman upon a flave, the prophet
having fo declared:— moreover, a woman who is free -is- law-
tul under all circumflances, the principle of reftricrion beforementioned
not operating with relpeft to fuch a woman.
If a man marry a flave during the Edit of complete divorce of
another wife who is free, it is mill, according to Haneefa.— T h e two
difcip-les ailedge that it is valid, as under the circumflances now recited
it does not amount to marrying a flave upon a free woman ;
whence it is that i f a man were to make a vow that he would not
marry another woman upon his prefent wife, and he were afterwards
to divorce his wife, and to marry another woman during her Edit, he
would not he forfworn. T h e argument o f Haneefa, in this café, is that
the marriage with the free wife does ftill in fome fliape remain, on
account of the continuance o f feveral o f its eIFe<3f; wherefore that
with a flave during the term of the free woman’s Edit is not admif-
ible, on a principle of caution: -Contrary to the’ cafe o f a vow,, as
4 . recited
87
i r l p i f l
if I:: i l l
. j i M J B 1 1 «
If u w m
1 • i ! s i
but a mant
wedded. to a
flave may
marry a free. | h, I m woman.
i-lr: I 1'! i l i f l m
Ifill I ill
! |f|l| I
l l l l i
1 ■ k
■
I I J