C H A P . III.
O f H irz, or Cuftody; and o f tak ing aw a y P ro p e rty thence..
There is no
amputation,
for ftealing
from a f a ther*
mother,
or child ;
or from any
prohibited relation
;
or from a
ftranger* in a
prohibited
relation’s
houfe.
It is incurred
by ftealing
from a prohibited
relation
in aftranger’s
houfe;
I f a perfon fteal- any tiling from the property of his father., mother,
or Jon, his hand is not cut off; becaufe any of thofe is at liberty, by a-
mutual right ( f ufufruB*, to take and ufe the property of the other ;
and alfo, becaufe the effedts of either of them is held , in virtue of this:
mutual right, to be within the cuftody of the other; and in the
fame manner, if a. perfon fteal'from the property of his relation within
the prohibited degrees, his hand is not cut off,, for the fecond' of the
above reafcns : contrary to the cafe of perfons who are merely friends,.
for if one of thele were to fteal from the other, his hand is cut off,
(inee his a£t of theft puts an end to their friendfhip- What is now
ftated' refpedtmg the cafe of t'heft from a relation within the prohibited
degrees is contrary to the doctrine of Shafei, he accounting the
affinity of all except parents and children to be a difiant affinity, as.
was before mentioned; in treating of the emancipation of flaves.
If a perfon fteal,. out of the houfe o f his relation within the prohibited
degrees, the effedts of a ftranger, his hand is not cut off*
but if he1 fteal the effedts of a prohibited relation out of the
ftranger % houfe, his hand is ftruck off; becaufe in the former
cafe the theft is not a violation of cuftody w"hereas in the latter it
is fo. *•
*• Arab. Imbifot, literally meaning “ a mutual liberty
I f
If a perfon commit a theft upon the property of his fofter-mother,
his hand is cut off. This is the 7Ahir Rawayet. It is recorded from
Aboo Yoofaf that his hand is not to be cut off, becaufe men are at
liberty, at all times, to enter their fofter-mother’s apartments without
form or permiffion: contrary to the cafe Of a fofter-fijler--, for the
reafon which operates in the inftance of a fofter-mother does not here
exift. The ground upon which the Zâhir Rawayet proceeds herein,
is that although prohibition fubfift between a man and his fofter-
mother, yet there is no relationjhip between them ; and the prohibition
which exifts independent of affinity (fuch as that occafioned by
whoredom, or touching in lufi*,~) has not the full effect of prohibition
by affinity, whence, if a man were to fteal any thing out of the houfe
of the daughter of a woman with whom he had committed whoredom,
his hand would be cut off, although between him and the
daughter prohibition exift. By ftealing, therefore, from the property
-of a fofter-mother, amputation is incurred. The foundation of this is
that fofterage is not commonly a thing of notoriety, wherefore men
have not a mutual right of ufufrudt with their fojier-mothers, in order
to avoid giving room for fufpicion : contrary to the right which
fubfifts with refpedt to the natural mother.
If , of a hufband and wife, either party fhould fteal from the property
of the other,— or a Have from the property of his mafter, or
■ of his matter’s wife, or of his miftrefs’ s hulband,— in none of thefe
cafes'is amputation incurred, becaufe in all of them the thief is, by
cuftom, at liberty to enter the houfe or apartment of the proprietor.
If, moreover, in the fame cafe of a hufband and wife, either were to
fteal any thing from a place of cuftody belonging exclufively to the
other, (as if, out of an apartment folely referved to the other’ s ufe,
and in which they do not both refide,) in this cafe alfo the hand of
* See Book II. chap. ?..
O 2
or from a
tturfe.
It is not incurred
by
ftealing from
an hufband
or wife; or
mafter or miftrefs
; or a
mafter's wife*
or a miftrejs's
hufband:
the