T h e child of
a Mokdtila is
included in.
her Kit abut,
and cannot
be fold.
A child begot
by a Mokatib
upon a Moka-
tibdy is in cluded
in the
Kitabat o f the
mother*
T h e children
o f a Mokatib
by a woman
who proves a
flave are
flaves, and
cannot be demanded
by
him.
If a Mokatiba bear a child to her hufband, fuch child is included
in her Kitabat; and the fale of it is unlawful, becaufe as the right of
being unfaleable is eftabliihed with refpeil to the Mokdtiba, it confe-
quently extends to her child, in the fame manner as fadbeer or Ijiee-
lad. (The cafe of Ifeelad, here alluded to, is where a perfon contrails
his Am-Wdlid in marriage to another, and Ihe bears a child,— in which
cafe that perfon cannot lawfully fell the child, as the unfaleablenef
o f the Am-Walid extends to her offspring.)
I f a perfon contrail His female flave in marriage to his male Have,
and afterwards create them both Mokatibs, and they have a child, it
is included in the Kitabat of the motherland its acquifitions appertain
to h e r; becaufe the dependance on the mother has the fuperiority, as
the qualities eftabliihed in the mother extend to her offspring; and
accordingly, a child is a dependant of its mother with refpeil to bondagt
and freedom.
I f a Mokatib marry, with the confent of his mafter,. a woman
who declares herfelf free, and they have children, and the woman be
afterwards claimed as a flave, their children are in fuch cafe flaves*,
and the father is not entitled to demand them for their value; and fo
likewife, i f a Jlave marry, with the confent of his mafter, a woman
under fuch circumftances. This is according to Haneefa and Aboo
Toofaf. Mohammed alleges that the children are free for their value;
in other words, the father is entitled to take them upon paying their
value, and they then are free; the reafon of which is, that as the
flave or Mokdtib married the woman purely under the idea that his
children fhould be free, .they are therefore in the fame predicament
with the flave of a Magroor, or perfon adding under a deception. The
argument of the twodifciples is, that as the children in queftion are
the offspring of two fa v es, (for their father and mother are both
* T o the owner o f the mother•
flaves,)
flaves,) it follows that they alfo are flaves.— The ground o f this is
that it is a rule that a child is a dependant of its mother with refpedl
to bondage and freedom.— This rule is, however, abandoned in the
cafe of a free perfon a fling under a deception, by all the companions.
But a flave or a Mokatib, a fling under a deception, are not in the
precife predicament with a fr e e perfon fo adding; becaufe, where the
perfon who afls under a deception is fr e e , he may be fued for the
value of his child upon the infant, (according to Mohammed,') whereas
a Mokatib, Modabbir, or fa v e fo circumftanced, in cafe o f having
married without their owner’s . approbation, cannot be fued for the
value of their child until after they have themfelves become free._
As therefore a flave or a Mokatib, adding under a deception, are not in
the precife predicament with a free perfon fo afding, it follows that
their child muft not be confounded with the child of a deceafed fr e e man,
but continues in its original ftate.
If a Mokatib have carnal connexion with the female flave of another,
in virtue of a fuppofed right of bondage, without the confent
of her mafter, (in this way, that he purchafes a flave, and cohabits
with her, and the flave afterwards proves the property of another,)
he muft in this cafe pay * an A kir, or fine o f treflpafs, to the value o f
her proper dower, and is liable to be fued for it during the term o f his
Kitabat. If, on the contrary, he had cohabited with the flave in
virtue of marriage •)-, he could not be fued for the fine until he had
obtained his freedom. A Mazoon, or flave licenfed to trade, is alfo
fubjeit to the fame rule. T h e difference between a cafe of cohabitation
in virtue of a right of bondage and in virtue of marriage is, that
fo the former cafe a debt is eftabliihed with refpeft to the mafter;
becaufe a contrail o f Kitbbat comprehends traffic and its incidents ;
and the fine is an incident of traffic, and muft be referred thereto; for
if the Mokatib had not purchafed the Have, he could not efcape punilh-
* T o her mailer. t W ith ou t the confent o f her owner.
F f f
Cafe o f a
Mokatib cohabiting
with
the flave o f
another
without his
confent.
V O L . I I I . ment.