I f the father
and mother
are both
freed- perfbns,
the W illa o f
their children
belongs to the
father's tribe.
Heirjhip is
eftabliffied by
Arab is ftrong, and is regarded with refpefl to equality and the payment
of fines;— for as the affiftance they afford to each other is on account
of affinity or genealogy, there is therefore no neceffity, in the
cafe of an Arab, to have regard to the Willa.— It is related, in the
Jama Sagheer, that if a Nabathean infidel marry a freed-woman who
is a Chriftian, and become a MuJJulman, and enter into a contrail of
Mawaldt with any perfon, and they afterwards have children, the
Willa of thofe children (according to Haneeja and Mohammed) appertains
to the Maw las of the mother. Aboo Toojaf, on the contrary,
maintains that their Willa appertains to the Mawlas of the father,
(namely, his Mawla Mawaldt;) becaufe, although the contrail of
Mawaldt be but weak, ftill it is on the part of the father;—and hence
the children in queflion refemble the child of a P e r f an man and an
Arab woman;— in other words, as, if a Perftan marry tea. Arab woman,
and fhe bring forth a child, it is referred to the father s tribe, fo alfo
in the prefent cafe.— (The ground on which this proceeds is that the
parentage of a child is weaker on the part of the mother than on the
part of the father.)— T h e argument of Haneefa is that the Willa of
Mawaldt is weak, (whence it is capable of diflolution,) whereas the
Willa of manumiffion is ftrong (whence it is incapable of diflolution;)
and the weak cannot oppofe the ftrong.
If the father be a freed-man, and the mother a freed-woman, the
parentage of their children is referred to the father’ s tribe; becaufe in
this inftance the parents are both upon an equality; and the father s
fide has the preference, as protection is on his fide more effectual.
By the Willa o f manumiffion Afoobdt * is eftabliffied;— in other
* Afoobàt, in i t s l i t e r a l f e n f e , l i g n i f i e s binding together the branches o f a tree, a bundle
o f arrows, o r f o f o r t h .— I n i t s f e c o n d a r y f e n f e i t is u f e d t o e x p r e f c the defcent o f inheritance
in the male line.
words,
words, where a perfon emancipates his (lave he is AJJaba* to fuch
(lave, and is entitled to inherit of him in preference to his maternal
uncles or aunts, or other uterine kindred; becaufe the prophet faid
to a perfon who had purchafed a {lave and afterwards emancipated
him, “ He whom you have thus emancipated is your brother; and i f he
“ manfejl his gratitude, it is the better fo r him, but the worfe fo r
“ you; or, i f he do not manifeft his gratitude, d t is the worfe fo r him,
but the better fo r you ; and i f he die without leaving heirs, you are his
A s s a b a . The daughter of Hamaza, moreover, emancipated her
Have; and the flave died, leaving a daughter; and the prophet con-
ftituted the daughter of Hamaza her heir in the manner of an AJJaba,
that is, notwithftanding there was a daughter.— Where, therefore,
Afoobat is eftabliffied on the part of the emancipator, he precedes the
relations; (and fuch is the opinion of Aleed) If, however, the emancipated
have any AJJabas by blood, they precede, as the emancipator
comes after the paternal kindred.— T h e ground of this is that, in the
faying of the prophet above quoted, “ i f he die without leaving heirs f
by the term heirs is to be underftood thofe of the defcription of AJJaba,
as may be inferred from the tradition concerning the daughter of Hamaza.
T h e emancipator, therefore, follows after the AJJabas, but
not after the maternal kindred -j-. If, on the contrary, the emancipated
have no AJJabas by blood, the whole inheritance belongs to the
emancipator. This is where there is no participating heir. But
where there is a ffiarer, the emancipator is entitled to what remains
after paying the ffiarer his [or her] portion; becaufe the emancipator
* AJJaba, in i t s p r im a r y f e n f e , f i g n i f i e s a n e r v e , f in e w , o r t e n d o n , o f a n o x o r o t h e r
an im a l, w i t h w h i c h b u n d le s o f a r r o w s , & c . a r e t ie d t o g e t h e r . H e n c e AJfaba is u fe d t o
e x p r e fs th e f i r f t h e i r o r h e a d o f a f a m i l y , f in c e t h e v a r io u s b r a n c h e s o f t h e f a m i l y a r e r e p r e -
“ d ‘V WCre) b°Undup “ h‘S P^ o n .-A fo o b a t m i g h t b e r e n d e r e d heirjhip, a n d
^ A u t h e W ; b u t a s th e t r a n f la t o r i s a p p r e h e n f iv e th i s m i g h t c o n f o u n d t h o f e t e rm s w i t h
M WanIJ 1 “ f “ mct a n d heir in * e m o f t e x t e n f i v e f e n f e , ] h e h a s t h e r e f o r e t h o u g h t
a d v ifa b le , in t h i s p l a c e , t o p r e f e r v e t h e o r ig in a l t e rm s , f o r t h e f a k e o f d i f t i n a i o n .
t That is, he precedes the maternal kindred.
is
the W illa of
manumiffion.
m