A robber, repenting
before
he is
feized, is not
liable to pu-
nijbnunt;
but the avenger
o f the offence
is at liberty
to exa£l
retaliation;
or, i f he forgive,
the robber
is refpon-
fible for the
value of the
articles taken.
The a&ual
perpetrator
being an infan
t or lunatic
fcreens all the
party from
puniihment.
G od, the protection, in behalf of the individual, of every thing fliort
of the whole perfon, ceafes in the fame manner as the protection of
property ceafes.
If a robber he taken after having repented, and he fhould have
been guilty of both robbery and murder, in this cafe the Wales Ja-
ndyet or avenger of the offence has it in .his option, either to flay him,
in retaliation, or to forgive him; becaufe, in the offence of highway
robbery, punifhment is not to be awarded after repentance, accord,
ing to what is written in the Koran, “ p u n i s h m e n t s h a l l b e i n -
“ FLICTED UPON THEM, EXCEPTING SUCH AS REPENT BEFORE
jgj THE MAGISTRATE LAYS HIS HANDS UPON T H EM ;” and alfo,
becaufe repentance only can be confirmed by the robber returning
the goods he had taken to their proper owner; in which cafe amputation
is not incurred * : but amputation not being incurred, it
neceflarily follows that the right of the individual holds in refpeCt
both to perfons and property: the avenger of the offence is therefore
at liberty either to exaCt retaliation or to forgive; and i f he forgive,
the robber remains refponfible for the property taken, whether it be
deftroyed in his hands, or confumed by him.
If , among a party of ro bbers, there happen to be an infant or a luna~
tic, or a prohibited relation of thp perfbn robbed, in this cafe punifhment
is remitted, not only with refpeCt to this perfon, but alfo with refpeft to
all the reft of the party. What is now advanced concerning an infa
n t and lunatic is the opinion of Haneefa and Ziffer. It is recorded
from Aboo Toofcf that this rule obtains only where the infant, or the
lunatic, is the aCtual perpetrator of the murder or robbery; but if the
aCtual perpetrator be of mature age and found underftanding, in this
cafe punifhment is inflicted upon the reft of the party alfo, although
there be an infant or a lunatic among them ;— but yet punifhment is
not inflicted upon the infant or the lunatic. T h e fame difference of
* See p. 1 16 .
opinion
©pinion, obtains in a cafe of theft committed by a party, of whom fome
are. infants or lunatics ;— that is, (according to Haneefa and Ziffer,)
punifhment is remitted with refpeCt to the whole.. The rule -is the
fame with Aboo Toofaf likewife,— provided that'only the lunatics of
infants carry forth the property out of the owner’s houfe,. and not the
others;. but if the reverfe be the cafe,., puniihment is not remitted,
with refpeCt to fuch of the party as are fane or adults T h e argument
of Aboo Toofcf is that the perpetrator is a principal, and the
affiftant a dependant only; now where the perpetrator is poffeffed of
underftanding,, there can be no demur refpeCting the principal; nor,
in faCt,, can any demur exift but with refpeCt to the dependant ', and'
that is not regarded:; but if the cafe be reverfed,. punifhment is remitted
in refpeCt to the •whole, becaufe here the demur concerns the.
principal.— The argument of Haneefa and Ziffer is that highway--
mbbcry:is. a, Angle offence,, committed, by the whole of the party,,
and that is- the caufe of the punifhment; but where it:happens that,
the aCt of fame of them, is not an oecafion of punifhment, the aCt o f
the others is then only a part of the caufe,. and an effeCt cannot be-
eftablifhed by a part of a caufe; in the fame manner as where two>
perfons kill a man by one. of them ftri'king him wilfully, and the
other accidentally, in which cafe retaliation does not take place; as;
the aft of the perfon. who ftruck wilfully, is only a part of the caufe;.
and fo in this cafe likewife.— With refpeCt to the words “ or a pro-
“ hibited relation of the perfon robbed,”— fome obfe-rvo that this
defcription applies- folely to a cafe where the property may be held
in common between fuch prohibited relation and the perfon robbed * ;;
whilft others maintain-that the. application, is-general, and not re—
ftriCted to this particular cafe; and this is approved,, becaufe. highway--
robbery is a Angle offence, committed by the whole, and hence a prevention
of punifhment in refpeCt to any any one of them occafions the
prevention of it in refpeCt to the remainder...
* Such as between a fa th er and fan. (See Jmbifat.)
O b j e c t i o n .