from feeing
an article it
the poj/ijjion
o f another :
its being the property of that other, becaufe pofleflion argues property,
fince in all caufes of property, fuch as purchafe, fale, or the
like, pofleflion is the argument of its exiftence.— For inftance; if a
perfon fell any thing, his pofleflion is an argument of the legality of
the fale; and in the lame manner, alfo, the right of property is efta-
blilhed in a purchafe from the pofleflion of the feller, and the right of
property in an heir, from the pofleflion of him from whom he inherits.—
Hence, in giving evidence of a thing being the property of
another, it is fufficient to have feen it in his pofleflion.— It is recorded
from Aboo Toofaf, that belides the fight of the pofleflion, it is requifite
that the witnefs verily believe the article to be the property of the
pofleflor, inlbmuch that if he do not really think fo he cannot lawfully
atteft on the pofieflor’s behalf.— Several of our doctors alfo remark
that this explanation applies to the opinion of Mohammed, above
related, refpefting the legality of attefting marriage, birth, and cohabitation
on hearfay;— that is, that it is lawful for a perfon to atteft
any of thefe incidents upon hearfay, provided he believe it in his own
mind, but' not otherwife.— Shafei has faid that pofleflion, together
with tranla&ion*, argues property ; (and many of the Haneefite doctors
are alfo of this opinion ;) becaufe pofleflion being of two kinds,
namely, either in virtue of truft or of right of property, does not argue
right of property unlefs when united with the performance of
adts.— Our doctors, on the other hand, argue that tranfadtion is alfo
of two kinds; one, in virtue of delegation, and the other in virtue of
original authority;— and hence the jundtion of tranfadtion to pofleflion
leaves ftill a doubt in regard to the property.—In lhort, if a probable
argument be adopted, pofleflion is then fufficient; but if a certain one
be required, pofleflion, even when joined to tranfadtion, could not be
fufficient.— It is to be obferved that the cafe here treated of admits of
four ftatements. I. Where a perfon fees both the proprietor and the
* Arab. Teferrify meaning (in this place) any a& o f maftery performed with refpe&
to the property in queftion, fuch as letting it out to hire3 for inftance.
property,
property, and is acquainted with both,— that is, with the countenance
and the family of the proprietor, and with the boundaries of the property,
which,he fees him poflefs without ftrife; and afterwards fees
the fame thing in the pofleflion of another; and the firft proprietor appears
to claim it ;—in which cafe it is lawful for him to give evidence
of its being the property of the firft perfon, becaufe of his having feen it
in his pofleflion. II. Where he fees the property, and its limits, but
not the proprietor;— and here alfo it is lawful for him to give evidence
o f the property, (upon a favourable conftrudtion of the l a w ) becaufe
the proprietor is known, fo far as regards his family, from hearfay.—.
HI. Where he neither fees the proprietor nor the property;—and,
IV . Where he fees the proprietor but not the property ; in both of
which cafes it is unlawful to give evidence with regard to the right
of property.
I f a, perfon fee a Have, male or female, in the pofleflion of another,
and know the faid perfon to be a Have, he. may lawfully give evidence
to fuch Have being theproperty of that other.;— for a Have not being
his own mafter, and of confequence not entitled to go where he
pleafes, is.apparently the property of that perfon in whofe hands he
remains. So alfo, if he Ihould not know the perfon feen in the pof-
feflion of another to be a Have, and being an infant, it Ihould be incapable
of explaining its own condition, he may in that cafe lawfully
give evidence of its being the property of the pofleflor; for an infant
is not its own mafter.— But if the perfon feen be arrived at the age of
maturity,— that is to fay, be capable of explaining his condition,— and
he Ihould not know whether he is a Have or not, then it is not lawful
to give evidence of his being the property of the pofleflor, limply on
the fight of the pofleflion.— This is the reafon of the exception, in the
preceding cafe, of a Have arrived at the age of maturity; and the
ground of it is that perfons arrived at the age of maturity are in a
manner in their own pofleflion; and therefore the pofleflion of another,
which indicates the right of -property of that other, is not to be dif-
V o l . II. 4 S covered
and the right
o f propercy
in a Jlave
may alfo be
attefted on
the fame
ground.