aiifwer is, that whoredom merely oecafions fiourging, which is a caufe
o f pain, but not of death-, and therefore, in this cafe, a ca-ufe of de~
Jirudtion did not take place whilft the Have was in the pofleflion of the
ufurper.
There is no A n ufurper is not r&fponfrble for the ufe of the artide ufurped * ;
but if it be injured he is refponfible for the damage. Shcfe'i mainuftrped
ar- tains that an ufurper is liable for the ufe of a thing ufurped, and .cone
t id e ; but the , , . c T . , .
ufurper is re- iequently, that he owes an adequate rent or hire ror it. It is to be ob-
Mydamage ferved that there is no difference between the doQrine of Shafe'i and
it may fuitain. that of our doftors, in the cafe where a perfon ufurps a houfe and
leaves it unoccupied, or occupies it himfelf; for in filch cafe, according
to both doftrines, the ufurper is not liable for the ufe of it.—
Malik maintains that if the ufurper himfelf occupy the houfe he is
refponfible for an adequate rent; but not in cafe of his leaving it unoccupied.
The argument of Shafe'i is that the ufe of property is
eftimable, (whence it is, a fubjeft of refponfibilityfrom contrails and
agreements,) and confequently is a fubjeit of refpoufibility -from ufurp-
atibn. The arguments of our doctors on this point are twofold.—
F i r s t , the ufe of an article ufurped is obtained by the ufurper in coii-
fequence of its occurring during his occupancy; (for it had not exifted
in the hands of the proprietor, as ufe is a paffing accident which does
not endure;) and fuch being the cafe, he is entitled to it, and confe-
iquently is not refponfible for it, as no man is refponfible for that to
which he is entitled.— S e c o n d l y , there is no fimilarity between ufe
and property, fuch as dirms and deenars; for ufe is an accident,
whereas property is a fubftance. Ufe, therefore, cannot be a fu'bjedt
of refponfibility in fiibftantial property; becaufe a fimilarity is requifite
between the compenfation and the thing for which the cpmpenfatiqn
is given.— With refpeft to the affertion of Shafe'i, that “ the ufe of
« property is eftimable,” it is not admitted, ufe being confidered as
Meaning, be dees net ewe any h i r e for the ufe.
eftimable
eftimable only in the cafe of contracts of hire, from neceffity; but in
the cafe of ufurpation there exifts no contract whatever.— Where,
however, the article, ufurped is damaged, whilft in the pofleflion of
the ufurper, in confequence of his ufe of it, ar compenfation for the
damage is incumbent upon him, becaufe of his having deftroyed part
o f the fubftance of the thing ufurped.
S E C T I O N .
O f the Ufurpation o f Things which are o f no Value.
I f a Mujfulman deftroy wine or pork belonging to a Zimmee, he a M^ulman
muft compenfate for the value of the fame; whereas, i f he deftrov Is rf rP°nfi.faIe
t i l - , , * , ’ u w u u j r fordeftroying
wine or pork belonging to a. £\/LuJjuhnan9 no compenfation is due.— wlne °r
Shafei maintains that in the former cafe alfo no compenfation is due. z Z ta ! “
A fimilar difagreement fubfifts with refpeft to the cafe o f a Zimmee de-
ftroying wine or pork belonging to a Zimmee; or o f one Zimmee felling
either ofthefe articles to another; for fuch fale is lawful, according
to our doftors,— in oppofition to the opinion of Shafei. T h e aro-u-
ment of Shafei is that wine and pork are not articles of value with re-
fpeft to Mujfulmans, nor with rcipeci to Zimmees, as thofe are dependant
of the Mujfulmans with regard to the precepts of the l a w .
A compenfation of property, therefore, for the deftruftion of thefe
ai tides, is not due. T h e arguments of our doctors are that wine and
pork are valuable property with refpeft to Zimmees; for with them
wine is the fame as vinegar with the Mujfulmans, and pork the fame
as mutton; and we, who are Mujfulmans, being commanded to leave
them in the practice of their religion, have confequently no right to
impofe