the divorce (he was under be reverfible or irreversible. It belongs to
him in the cafe of irreverfible divorce ;. becaufe,.after fuch divorce the
begetting of the child cannot be attributed to the father, as his having
connexion with the female Have in queftion after an irreverfible divorce
would be unlawful, and we mufl always, as far as poffible, put a fair
conftruâion on the ads of a Muffidman. The begetting of it is therefore
referred to him antecedent to divorce; and as the foetus exifts at
the time of emancipation, the Willa of it confequently belongs to the
mother’ s mafter, as he has emancipated it of itfelf and independantly.
In the fame manner alfo, it belongs to him in the cafe of reverfible divorce
; becaufe the child being born of the Have in queftion within lefs
than two years, it is poffible that the fetus may have exifted during
divorce, in which cafe there is no occafion for a reverfal of the divorce
in order to the eftablifhment of the parentage; or, on the other
hand, it is pofftble that the fetus may not have exifted during divorce,
in which cafe a reverfal of the divorce is effential to the eftablifhment
of the parentage :— now fuch reverfal is doubtful ;— no regard, therefore,
is paid to that, but the conception is referred to the time of the
marriage ; and as the fetus exifts at the time of manumiffion, the
child is therefore emancipated independantly and of itfelf. It is written
in the Jama Sagheer, that if a Have marry a freed-woman, and
they have children, and thofe children commit any offences, the fine
falls upon the Mawlas of the mother; becaufe they have become free
as dependants of their mother. Their father, moreover, is not pof-
fefled either of Akilas or of Mawlas by manumiffion. Confequently,
they are of neceffity attached to the Mawlas of the mother, in the
fame manner as in the cafe of an affeyerating woman, before alluded
to ; but if,’ afterwards, the father be emancipated, the Willa of them
fhifts to the Mawlas o f the father, as was before explained. The
Manilas of the mother, however, are not in this cafe entitled to recover,
from the Manilas of the father, the fine they have paid on account
of the children’ s offence, becaufe at the time they paid it the
Willa of the children appertained to them and the Willa is not eftablifhed
blifhed to the mafter of the father until he [the mafter] emancipate
him [the father]; becaufe the occafion of Willa, namely manumiffion,
cannot be referred to an antecedent time, but is reftricted to the time
of emancipation.— It is otherwife with refpedt to the child o f an afle-
verating woman, where the mother’s tribe pay the fine on account of
any offence committed by fuch child, and the hufband afterwards retracts
his imputation againft her;— for in this cafe' the parentage is
eftablifhed by referring it to the conception o f that child; and as the
mother’s Mawlas have not paid the fine willingly, but per force, they
are accordingly entitled to recover it.
I f a Perfian* marry a freed-woman, and they have children, the Cafe of
Willa of thofe children refts with the Mawlas o f the mother, whether fymgafreed-
fhe was' emancipated by an Arab or a P e r f an. The compiler o f the woman-
Heddya remarks that this is the opinion of Mohammed; but that Aboo
maintains that the child is in this cafe fubjedl to the fame rule
with the father, inafmuch as its parentage is eftablifhed in the father,
m the fame manner as if the perfon who married the flave in queftion
w'èré -an Arab.— It is otherwife, however, where the perfon who
marries her is a fa v e ; for as a flave is, conftruftively, a mere dead
matter, the cafe is therefore the fame as i f thofe children had no father
whatever. T h e argument of Haneefa and Mohammed is that the Willa
of manumiffion is ftrong, and worthy of regard with refpedt to its ef-
feös, whence equality' is attended to in it, infomuch that a Perfan
emancipator is not equal to an Arab emancipator. Thé parentage o f a
Perjian, moreovei, is weak, as they pay no regard to genealogy
(whence no attention is paid by them to equality in point of family;)
and that which is weak cannot oppofe that which is frong . It is
otherwife where the father is an Arab, becaufe the parentage o f an
* A r a b . Ajmte. T h i s t e rm a p p l ie s n o t o n l y t o th e n a t i v e s o f Perfia, b u t o f a l l o t h e r
c o u n t r i e s e x c e p t Arabia. T h e c a f e h e r e c o n f id e r e d t u r n s u p o n th e f u p e r i o r i t y w h i c h th e
Arabs c l a im , in p o in t o f p r i v i l e g e s , o v e r a l l o th e r s .
L 1 1 z Arab