the ufurper the compenfation he may have taken; for under fuch cir-
cumftances the confent of the proprietor was not complete with re-
fped to the quantity, fince he claimed' a larges quantity, but was
obliged to take the quantity in queftion from his want of proof to
eftablifh the other. If, on the other hand, the fubftanee of the article
ufurped be found at a period when its- value is equal to, or left
than, the compenfation taken,— and the proprietor ihould have taken
the compenfation in conformity with the aflertion or oath of the
ufurper, the law (according to the Zahir Rawdyet)* is. the fame as
already recited; that is, the proprietor has the option of either adhering
to the compenfation he had taken, or o f taking back from the
ufurper the fubftanee of the article, and reftoring to him the amount
of the compenfation. This is approved; becaule the confent of the
proprietor to take the compenfation in queftion was not complete, in-
afmuch as he claimed a larger fum, which he did not get, and
hence he has the option, becaufe of the non-exiftence of his
confent.
The rale o f I f a perfon ufurp a Have, and fell him, and the proprietor take the
“ “/ " ‘“the value of him from the ufurper as a compenfation, the fale is in that cafe
ufurper is valid. If, on the contrary, the ufurper emancipate the (lave, and the pro-
theownerre- prietor afterwards take a compenfation, the emancipation is not valid;
becaufe the right of property eftablifhed in the ufurper by his pay-
compenfa- }ng the compenfation is defective, as being eftablifhed by a retrofpec-
\he ’emancipa- tive reference, from a principle of neceffity; (whence it is that the right
would"be* hi- of property in an ufurper takes place with refpeft to earnings of labour,
vaiid. but not with refpeft to progeny;— in other words, if a perfon ufurp a
female (lave, and take to himfelf the earnings of her labour, and afterwards
pay a compenfation to the proprietor, the earnings are in
that cafe his property; but if fhe Ihould bear -children whilft in his
pofleffion, and he afterwards pay a compenfation to the proprietor,
the children are not his property.)— In ftiort, the right of property
eftablifhed in a ufurper in virtue of his payment of compenfation is
^ defective;
defeftive; and a defective right of property is fufficient to legalize fale,
but not emancipation; in the fame manner as the right of property
eftablifhed in a Mokdtib with refpeft to the earnings of his labour is
defective; yet if he fhould fell a flave whom he may have earned by
his labour it is valid; whereas if he were to emancipate him, the emancipation
would be invalid.
T he fruit of an ufurped orchard, and the children of an ufurped
female (lave, together with their produce, (fuch as their increafe of
ftature and beauty,) are a truft in the hands of the ufurper. If,
therefore, they be deftroyed, he is not refponfible for them;— unlefs,
however, he fhould have committed a trefpafs with regard to them,
or refufed to anfwer the demand of the proprietor to deliver them up
to him; for in thefe cafes he is refponfible. Shafe'i maintains that the
increafe of an article ufurped, whether it be conjoined (fuch as increafe
of ftature or of beauty) or feparated (fuch as progeny,) is a fubjeft o f
refponfibility; becaufe ufurpation is eftablifhed with refpeft to i t ;
for ufurpation means the eftablijhment o f pojfejfon over the property o f
another without the confent o f that other; and as this definition applies
equally to any increafe which may accrue upon fuch property, it is
therefore a fubjeft of refponfibility, although the ufurper have not
difpoflefled the proprietor of i t ; in the fame manner as the fawn is a
fubjeft of refponfibility, in a cafe where a perfon takes a deer out of
an inclofure * , and it afterwards brings forth whilft in his pofleffion,
notwithftanding that it [the fawn] had not before been in the poflef- .
lion of any one, fo as to eftablifh a difpofleffion. The reafoning of
our doftors is, that ufurpation means “ the eftablifhment of pofleffion
“ over the property of another, fo as to defroy the pofleffion o f the
* In the text the cafe is fuppofed that o f a pilgrim driving a deer out o f the facred territory
round Mecca.-— T h e tranflator has hazarded a fmall deviation from the original
in this inftance, merely with a view to familiarize the allufion in the mind o f an European
reader.
V o l . III. 4 A “ proprietor”
The produce
o f an ufurped
property is a
truft in the
ufurper's
hands.