The ufurper
o f a female
flave, impregnating
her,
is refponfible
for her value,
in cafe (he die
o f child-birth
after reftora-
tion.
to be confidered as the caufe of the mother’ s death, fince delivery is not
neceffarily coimefted with death, being more frequently attended with
fafety. Where, on the other hand, the child dies prior to the reiteration
of the mother, the injury is not remedied; becaufe there was
a neceffity for the reiteration of the original (namely, the mother) in
the condition in which lhe was at the period of ufurpation; and as
Ihe afterwards fuftained an injury by the birth of a child, and the fruit
of the injury (namely, the child) cannot, becaufe of its death, be
o-iven along with the mother, it follows that the mother is not reftored
in the condition in which lhe was at the period of ufurpation.
With refpect to the caftration of a Have, it is not an increafe, being
an object only with fome loofe people;— and as to the other inftances
adduced by Ziffer and Shafei, the caufe in them of the increafe and
the damage is not one and the fame thing; for the caufe of damage
in a tree is the cutting off its branch, whillt the caufe of increafe is
the growth; the caufe of damage in a Iheep is the Iheering of its
wool, whilft the caufe of increafe is the growth of the animal; and
the caufe of damage in the Have is the teaching or inftructing him,
whilft the caufe of increafe is the intellect of the Have.
I f a perfon ufurp a female Have, and cohabit with her, and lhe
become pregnant, and he reftore her in that ftate to the proprietor,
and lhe then die of child-birth, the ufurper muft in that cafe pay a
compenfation equal to the value which lhe bore on the day of her impregnation;
whereas, if lhe were free, no compenfation would be
required, according to Haneefa. T h e two difciples maintain that
neither is any compenfation due in the cafe of her being a Have. The
arguments of the two difciples are that, in the cafe in queftion, upon
the ufurper reftoring the Have to the proprietor, and the reftoration
being made valid and complete, the proprietor is held to have received
her into his property; and as, afterwards, the diforder of which lhe
dies, namely, child-birth* is thus confidered to have happened to her
whilft in the poffeffion of the proprietor, the ufurper is, therefore,
not
not liable for her; in the lame manner as where an ufurped female
Have, having been feized with fome diforder, fuch as a fever, the
ufurper reftores her in that condition to the proprietor, and lhe afterwards
dies in his poffeffion; or where an ufurped female Have commits
whoredom with fome perlon whilft in the ufurper’s pofleffion,
and he reftores her to the proprietor, and lhe afterwards fuffers punilh-
ment for whoredom, and dies of the fame; in neither of which cafes
is the ufurper refponfible, any more than a feller, in the cafe of his
felling a pregnant female Have, who afterwards dies of childbirth in
the poffeffion of the purchafer. The arguments of Haneefa are, that,
as the ufurper, in the cafe in queftion, ufurped the female Have at a
time when the caufe of deftrudtion did not exift in her, and reftored
her at a period when fuch caufe did exift in her, he therefore has not
reftored her in the ftate in which he took h e r co n feq u e n t ly , the reftoration
was not valid and complete, being, in fadt, the fame as if an
ufurped female Have, having committed a crime in the ufurper’s poffeffion,
Ihould afterwards, on account of fuch crime, be put to death,
whilft in the poffeffion of the proprietor,— or be given up to the
avenger of the offence, in confequence of her having committed the
crime inadvertently, inftead of wilfully,— in either o f which cafes
the proprietor is entitled to take the whole of the value from the
ufurper, and fo alfo in the cafe in queftion. It is otherwife where the
woman ufurped is free; becaufe no refponfibility takes place from the
ufurpation of a free woman, and confequently the ufurper is not re-
fponlible after the reftoration, although fuch reftoration were invalid.
With refpect to what has been alleged of the purchafe of a pregnant
female Have, it is anfwered, that the delivery not having been incumbent
upon the feller on account o f his having before taken her, fo as
to require a delivery in the ftate in which he had taken her, (which
is a condition of validity in the cafe of ufurpation,) it follows that the
analogy here does not hold good. With refpedt, alfo, to the cafe of
an ufurped female flave committing whoredom, and dying in confequence
of the punilhment on that account inflicted upop her, the
8 anfwer