apd, for the
lecond, the
left foot; and
for any beyond
that the
thief is to be
imprifoned.
T h e amputation is particularly directed- to be performed at the wrijh.,
becaufe the word y e d , in the K o r a n , fignifies the whale arm up to
theJhoulder, and as the wrift joint is inclofed therein,, that is certified,
wherefore in that fenie the text is followed :■— moreover, it is related
of the prophet, in the Nakl-Sahceh, that he ordered the hand of a
thief to be ftruk oft at the wrift. The cautery is to be applied to the
flump; becaufe of a precept of the prophet, “ Cut off the hand o f a
“ thief, and cauterife the p a r t— and alfo, becaufe, if the cautery
were not applied, the amputation might prove deftrudtive; and pu-
nifhment. is infiidted with a view to warning and determent, but not
for defirublion.— I f the thief who has thus been deprived of his hand again
commit a theft, his left foot is-to be cut off. . If, however, he again
be guilty of theft, a third time,, he is not to fuffer any further mutilation,
but muft be imprifoned, and held in confinement, until he repent.
Concerning the time fufficient to effect and confirm fuch
repentance there are various opinions; -fome faying that this is to be
left to. the judgment of the Imdm or Kazee^— others, that the im,
prifonment fhould be fo r one year-,^and others, that it ought to he
until death ;^r»whilfl others, on the other hand, maintain that he is to
be held in durance until fuch time as repentance be afcertained from
his converfation and behaviour. What is here advanced,— “ if he be
“ again guilty of theft, a third time, he is not to fuffer.any further nautili
lation, but muft be imprifoned,” &c. proceeds upon a favourable con-
ftrudtion of the law:— and our modem dodtors fay that Tazeer, or
difcretionary corredtion,. may alio be inflidted. Shafe'i fays that for
the third offence the left hand' is to be cut off,' and, for thz fourth,
the right foot, becaufe the words of the prophet are “ f a man com-
“ mit a theft cut off one o f his limbs ; and i f he again commit the fame,
“ cut off another limb-, and i f he again commit the fame, a third time,
“ cut off another limb-, and i f a fourth time, another ; and i f he com-
“ mit theft a fifth time, put him to death”— There is alfo an ordinance
of the prophet, ftill more particularly according with the tenets
of Shafe'i upon this head, which, is mentioned by Aboo Hareera, who
reports
reports the prophet to have faid, Whoever commits a theft,. Bis right
“ hand is, to be cut o ff; and i f he again commit, theft, its left foot-, and
“ f again, his. left hand-, and i f again, his right fo o t: becaufe the third
t s theft is an offence m the fame degree as the fir fi, and is even more atro-
“ cious-, wher fore fo r the third offence the law awards punifhment in
“ a fuperior degree." The arguments,of our dodtors-upon, this point
are threefold: f ir s t , Alee has declared, refpedting a perfon.who had
been a third time guilty of theft, “ Whilfl I live by.the favour o f God',
“ Jhall I not leave him a hand with which to feed himfelf or afoot with
which to walk — the propriety of which declaration being difputed
by fome of the companions, Alee argued the. point with them,
and overcame their fcruples; wherefore they all fubfcribed to his opinion,
and confequently the whole of them are agreed. concerning i t .
se con d l y, the amputation of the. left hand in the third inftance,
and of the right foot, -in the fourth, is .in fadt a deftrudtion. of the
thief, fince by cutting, off the left hand he is totally deprived’ of one
faculty, and punilhment is inftituted with a view to determent and not
to dcfiruBion: t h ir d l y , the repetition of theft a third time is.a thing of
rare occurrence., and determents are inftituted concerning things which
are offrequent occurrence. It is otherwife in retaliation, with refpedt
.to the members.pf the body; for as that is a right of the individual
fo the individual is, to exaft it, as far as may be prafticable, on his
own behalf.. As to the tradition adduced by Shafe'i, it is. either
unworthy of being.ferioufly regarded, (as having been ridiculed-by
fahdvee,') or elfe it is to, be confidered merely as a threat.
If the left hand or right foot of a thief be paralytic, or have been The le ft hand
loft by accident, his right hand or left foot muft not be cut off, fince
by the. lofs of thefe he is deprived of one of his faculties of walking ^uutedin de-
or carrying. In the fame manner, the right hand of a thief muft right hand or
not be cut off where the thumb or any two fingers of the left hand fftfi»-
* In oppofition to punilhment, w hichis a right of G od, (»'. e. o f the l a w .).