fe r , on the contrary, maintains that the retaliation is upon the compelled
perfon;— whereas Aboo Toofaf holds that there is no retaliation
upon either party,— and Shefei (on the contrary) contends that it is
incurred by both.— T h e argument of Ziffer is, that the aft of murder
has proceeded from the compelled perion, both de facia and quo animo,
and the l aw , alfo, has attached to him the effect of it, namely criminality;
confequently he incurs retaliation. (It is otherwile in the
cafe of deftroying the property of another upon compulfion, fince as
the l aw has not attached the effea thereof, namely the criminality,
to him, it is confequently referred to another, namely the compeller.)
Such alfo is the argument of Shafei for awarding retaliation upon the
compelled perfon: and his argument for awarding it upon the compeller
is, that from him proceeded the moving caufe of the murder,
as the compulfion was the caufe of i t ; and the moving caufe in murder
Hands (according to him) fubject to the fame rule with the actual
perpetr a tionas in the cafe of witneffes whofe evidence induces retaliation;
in other words, if two witneffes give evidence of a wilful
murder, and in conformity with their teftimony retaliation be executed
upon the accufed, and the perfon to whole murder they had
borne teftimony afterwards prove to be ftill living, thofe witneffes
are then put to death in retaliation. T h e argument of Aboo Toofaf is
that concerning the propriety of awarding retaliation upon the compelled
perfon there is a doubt; and, in the fame manner, there is alfo
a doubt concerning the propriety of awarding it upon the compeller;
•for in one way the view is to fix the murder upon the compelled, be-
.caufe of his being an offender, and it is alfo fixed upon the compeller,
becaufe of his being the mover:— thus a doubt oppofes itfelf with re-
fpedt to each; and hence neither of them is liable to retaliation. - The
argument of Haneefa and Mohammed is that the compelled perfon is,
in this inftance, forced to the comtniflion of the murder by a natural
inftindt, which leads a man to prefer his own life to that of another;
and he muft therefore, as far as is poflible, be regarded as the inftru-
ment of the compeller. He is accordingly confidered as his itiftrument
in the commiffion of the murder, in t)ie manner of a weapon. He
cannot, however, be his iuftrument with regard to the criminality of
the murder, in fuch a way as that no part of the criminality would
attach to himfelf, but the whole be imputable to the compeller; and
hence the murder, with regard to its criminality, is reftridted to the
perfon compelled.— This is therefore in fome meafure analogous to a
cafe of compulfive manumiflion,—or of a perfon compelling a Magian
to (laughter* a goat; that is to fay, i f one perfon compel another to
emancipate his Have, and he emancipate him accordingly, in this cafe
the emancipation is referred and imputed to the compeller, whence he
is anfwerable for the value of the flave,— but the emancipation is imputed
to the compelled with regard to the execution of it, for i f it were
in this refpedt alfo imputed to the compeller, the flave would not become
free;— and, in the fame manner, i f a perfon compel a Magian,
or other idolator, to {laughter the goat of another, his adt is referred
and imputed to the compeller, with regard to the deftrudtion of the
propertv, but not with regard to a lawful Z abb ah, whence the goat
is prohibited and carrion;— and fo likewife, in the cafe in queftion,
the adt o f the compelled perfon is imputed to the compeller with re-
fpedt to the deJlruElion, not with regard to the criminality.
I f one perfon compel another to divorce his wife, or to emancipate Cafe o f com-
his flave, and this perfon accordingly divorce his wife or emancipate
his flave, Tuch divorce or emancipation takes effedt, according to our ,im'
dodtors: in oppofition to the opinion of Shafei, as has been already
ftated under the head of D i v o r c e .— In the cafe of compulfive manumiflion,
the perfon compelled is entitled to take the value of the flave
from the compeller, becaufe as in this cafe the compelled admits of
being confidered as the inftrument of the compeller with regard to the
deftrudtion of property, to him fuch deftrudtion is accordingly referred
and imputed. Hence he is at liberty to feek a compenfation from the
* A rab . Z M a h . ( I t is fully explained under its proper head.)
compeller,