be defired to reftore i t ; fince his confeflion is valid with refpedt to the
property, as he has been invefted, by his mafter, with power to make
confeflion in matters of property, whereas a Mahjoor. flave’s confef-
fion refpedting property alfo is not admitted. Our doctors allege that
a Mahjoor s confeflion, inducing punifhment, is admitted, as he is a
man * , after which the confeflion proceeds, dependantly, to affedt the
property, and thus this confeflion is Valid with refpedt to the property
likewife: a Have moreover cannot be fufpecled, in a cafe of confeflion
inducing punifhment, fince his confeflion induces pain to himfelf,
as his hand is cut off in confequence of i t ; and a confeflion of this
nature is admitted although it tend to affedt the right of another.—
T h e argument of Mohammed, in the cafe of a Mahjoor, is that his
confeflion, as property, is null; (whence his confeflion with
refpedt to an ufurpation of property, is not admitted;) any property,
therefore, which is in the hands of the Mahjoor, is the property of
his mafter; and the hand of a Have is not cut off for ftealing the property
of his mafter. A circumftance which confirms this dodtrine of
Mohammed is, that the property is the original thing in a profecution
for theft, and the amputation only a dependant, whence a profecution
may be heard refpedting the property, independent of amputation,—
that is, i f the proprietor Cue for the property .and not for punijhment,
his fuit is heard;— and fo likewife, property is eftablifhed independent
of amputation, where the evidence confifts of one man and two women,—
or, where the thief makes confeflion of the theft, and afterwards
retradts and denies i t b u t if the cafe were reverfed,-—that is,
if the owner of the property declare “ I am defirous that his hand
“ be cut off, and do not want the property,” his fuit is not heard;
and in the fame manner, amputation cannot be eftablilhed unlefs the
property be eftablifhed: it is therefore evident that the property, in
the cafe in queftion, is the original thing, and amputation only a de-
* And therefore fubject to the penalties o f the law, in common with other people.
pendant ;
pendant; and the confeflion of a (lave not being valid with refpedt
to that which is the original, (namely the property,) it neceffarily
follows that it is not valid with refpedt to amputation, which is
only a dependant thereof. It is otherwife in the cafe of a Mazoon,
as his confeflion with refpedt to the property in his hands is
valid, and confequently his confeflion with refpedt to that which is
its dependant (namely amputation) muft be valid likewife. The argument
of Aboo Yoofaf is that, in the cafe in queftion, the Mahjoor
has made a confeflion affedting two points; first, amputation, (which
affedts his own perfon, according to what was before obferved, that
“ he is a man” and which is confequently valid;) secondly,
property, (which affedts his mafter, and is confequently invalid with
refpedt to the mafter:) now amputation may be incurred independent
o f property ; as where a free perfon (for inftance) confefles to his
having ftolen cloth, which is in the hands of Zeyd, by faying “ I
“ ftole this cloth from Aumroo,” and Zeyd aflerts the cloth to be his
“ own property, in which cafe the hand of the perfon fb confef-
fing is ftruck off, although his confeflion be not received in refpedt
to that particular piece of cloth, whence it is not to be taken from
Zeyd. Haneefa fays that the confeflion of a Mahjoor flave, where it
induces punifhment for theft, is valid, (according to what was before
ftated, that “ he is a man;"')— and his confeflion muft alfo be
valid with refpedt to the pi operty, in confequence of its being fo with
refpedt to punijhment; becaufe the confeflion is made after the perpetration
of the theft, and not at the beginning of i t ; and the property, after
the theft, is a dependant of amputation; whence it is that the protedtion
of that property ceafes in confequence of amputation; and alfo, that
amputation is inflidted after the deftrudtion of the property. It is other-
wife in the cafe of confeflion made by a freeman, as before cited; For
there amputation only is due, but not the reftoration of the property ;
becaufe the hand of a thief is to be cut off for ftealing property from
a trufee; and it is here po'flible that the cloth is the adtual property of
Zeyd, and that the freeman had ftolen it from Aumroo, in whole hands
V ol. II. R it