Parentage fs
eltabliihed in
a cafe of error
with refpeft
to the/uljeff,
but not in a
cafe of error
with refpeft to
the a& :
and there is
no jnnuh-
In a cafe of error of the fecond fpecies, the parentage of the child
is eftablilhed in the man who has had filch connexion, if he claim
fuch child ; but in a cafe of error of the firfl lpecies, the parentage of
the child is not to be eftablilhed in the man, notwithftanding his
claim,— becaufe, in a cafe where the error is of the fir ji fpecies the
aft of generation is prfitive whoredom, although punilhment be not incurred,
on account of a circumftance which has reference to the man
committing fuch aft, (namely, that of the illegality of the aft being
mifconceived by him, according to his apprehenlion of i t ;) but the
aft of generation, in a cafe of error of the fecond fpecies,. is not po/itive
whoredom.
E r r o r in relpeft to the a il exiffs in eight feveral lituations j
namely, with—
I. .the female Have of a man’s mother
II. the female (lave of his fa th e r ; —
III. the female Have of his w'fe ;—
IV . a wife repudiated by three divorces, who is in her E d it;—
V . a wife completely divorced for a compenfation, and in her
E d it;
VI. an Am-JValid, who-is in her Edit after emancipation with
relpeft; to her mafter;
VII. the female Have of a mafter, with relpeft to his male Have;
VIIL a female Have, delivered as a pledge, with relpeft to the
receiver of fuch pledge, (according to the Rawdyet-Sa-
heeh in treating of punilhment;)— and it is to be obferved,
that a borrower, in this point, Hands in the fame predicament
with the receiver o f a pledge :—
— and in all thole lituations the perfon who has carnal conjunftion
does not incur punilhment, provided he declare— “ I conceived that
“ this
“ this woman was lawful to me — but if he Ihould acknowledge his
confcioulhefs that the woman was unlawful to him, he incurs
punilhment.
E r r o r in relpeft to the fu b jeil exifts in fix lituations; namely,,
with—
I. the female Have of a man’s Ion ;
II. a wife completely repudiated by an implied divorce
III. a female Have fold, with refpeft to the leller, before the
delivery of her to the purchafer ;
IV. a female Have Mamhoora,— (that is, a Have ftipulated to be
given in dower to a wife,)— with refpeft to the hulband,
before feizin of her being made by the wife;
V . a female Have held in partnerlhip, with relpeft to any of
the partners ;
V i . a female Have delivered in pledge, with relpeft to the receiver
of fuch pledge, according to the Book of Pawnage;
— and- in all thofe lituations a perfon who has carnal connexion does
not incur punilhment, even though he Ihould confefs his confciouf-
nels of fuch woman being unlawful to him-
A ccording to Haneefa, a contraft of marriage is a fufficient
ground of error, although the illegality o f fuch marriage be univer-
fally allowed, and the man entering into fuch contraft be fenfible of
this illegality. With our other doftors, on the contrary, a contraft
of marriage is not admitted as a legal ground of error, if the man be
feiifible of the illegality.— The effeft of this difference-of opinion appears
in a cafe where a man marries a woman related to him within
the prohibited degrees,— as lhall be hereafter explained.
I f a man. pronounce three divorces upon his wife, and afterwards
s * have.
ment in either
cafe.
A contract of
marriage prevents
punishment,
although
avowedly
illegal
Connexion'
with a wife