Amputation
cannot be inflicted
twice,
for ftealing
the fame article
from the
fame perfon,
that his "hand is not to be ftruck off, becaufe money, (namely dirms
and deenars') is all o f one and the fame nature.
If a perfon fteal any particular article, and fuffer amputation of
his hand for the fame, and after returning the property ftolen to the
proper owner, again fteal that fame article, without its having undergone
any change in the interim, his foot is not to be ftruck off for
fuch repeated theft. This proceeds upon a favorable conftrudtion of
the law. Analogy requires that his foot be cut off; (and there
is an opinion of Aboo Yoofaf recorded to this effedt; and fuch alfo is the
doftrine of Shafei;) becaufe the prophet has faid “ I f he again Jleal,
“ let amputation be again inflided upon him;” where no manner of dif-
tinciion is made with refpect to the article ftolen in the fecond theft
being the fame as that which was ftolen in the fir fl, or not, as the
fecond is a complete theft the fame as the fir f, and even more atrocious,
inafmuch as the thief, having already fuffered punifhment, yet dares to
repeat the very fame offence. The offence is indeed the fame as' if
the .owner were to fell the article ftolen to the thief, and again to pur-
chafe it of him, and the thief then to fteal it of him a fecond time.
But the reafbns for a more favourable conftrudtion of the law herein
are two-fold:— f i r s t , in confequence of the amputation of the thief’s
hand, the protedtion * of the thing ftolen ceafes,— that is, in confequence
of cutting off the thief’s hand, the article ftolen no longer
remains protected in behalf of the right of the individual, (as fhall be
hereafter demonftrated;)— and although, on returning it to the
owner, it revert to a ftate of protedtion, yet an apprehenfion of the
protedtion having ceafed ftill remains, judging from unity of right o f
property and of fubjed, and from the exiftence of the caufe of the
failure of protedtion,— that is, judging from the circumftances of this
property being that fame individual property the protedtion of which
had been already deftroyed by the former theft and fubfeqoent punifti-
* Arab. Ifmut. Our lexicons give Tutamen as the original and Ca/litas as the occafmal
meaning of it.
ment,—
ment,— and of the prefent proprietor being the fame who was formerly
proprietor,— and of the caufe of the failure of protedtion (namely,
the amputation already inflidted) being ftill exiftent : contrary to the
cafe adduced by Shafei, becaufe in that cafe the right of property has been
o f à different nature, as being derived from a different fource *:_
s e c o n d l y , the repetition of the theft of the fame article by the fame
thief, after his hand being cut off) is a circumftance of rare occurrence *
wherefore the inflidtion of punifhment a fecond time can anfwer no
end; for the end :of punifliment is to reftrain from guilt; and that
end is obtained without a fecond inflidtion of punifhment ; the cafe in
queftion being analogous to one where a perfon who had been punifhed
fo|- flan.der again, accufes.the flandered perfon of the fame fa ft of
whoredom with which he had before charged, him, in which in-
ftance a fecond punifhment is not incurred by flanderer ; and fo here
likewife.— What is now advanced proceeds upon the fuppofition that lln!c<a “ 1,aTB
the thing ftolen does not undergo any change after being returned to | | § | ^
thp oymem-but if it be changed from it’s former ftate, (as if a
perfon were to fteal thread, and fuffer amputation, and return the tke&‘
thread to the owner, and the thread be afterwards woven into cloth
and the thief fhould then fteal the cloth,) the thief’s foot is cut off)
becaufe the thing ftolen has been altered by weaving ; (whence it is
that if a. perfon feize a parcel of thread by Ghafb, [ufurpation,].
and weave the thread into cloth, he becomes proprietor of the cloth
in confequence o f weaving it and this is an example of change,
applicable to any fubjedt whatever :) and where the thing ftolen undergoes
a change, the doubt arifing from unity of fubjedt, and amputation
on account of the former theft of it, is removed; wherefore
amputation is repeated, by cutting off the foot.
;Q , n. o . WM / 0------ yurevaje jrom we WieK winch
from the caufe °f
VoL. II. O C H A P .