P A W N S .
The fines incurred
by a
pledged fiwve
mu ft be defrayed
by the
pawnee j
appearance;) and as, in cafe of the exigence of the fir ji flave, if the
value were to be diminifhed by a fall in the price, {fill no part of the
debt (as we have before fhewn) would be on that account annulled j_
fo neither is any part annulled when another (lave is fubftituted for the
one originally pledged. Mohammed has indeed faid that the pawner
may neverthelefs refufe to redeem the pledge; for when a change and
diminution of value took place in the pawn whilfl: in the pofleffion of
the pawnee, (which is a caufe of refponfibility,) the pawner became
empowered to object to the redemption o f i t ;— in the fame manner as
where a Have kills a purchafed flave antecedent to the delivery of him,
■— in which cafe the purchafer has it at his option either to accept the
flave who committed the murder in lieu of thevone he purchafed, or to
annul the contract: [of fale.] T o this, however, the two Eiders reply,
that upon the fecond flave being, with regard to appearance, fubftituted
for the firft, it may be faid that no change takes place in the,
identity of the flave; and as tfce fubftance of a pawn is a trujl in the
hands of the pawnee, it follows that the pawner cannot render it the
property of the pawnee unlefs he fhould confent thereunto.—More-:
over, the transfer of a pledge in commutation of the debt to which it
flood oppofed was a common pradtice in times of ignorance, bat;
has fmee been proferibed by the l aw . It is otherwife with refpedl to
the cafe of fale adduced as a parallel by Mohammed-, for there the buyer,
has the option of annulling the contrail of l'ale; and the annulmeiit «fr
fale is permitted by the l aw .
If a pledged flave flay a perfon by mifadventure, the fine of blood
is in that cafe chargeable to the pawnee, who muft defray it accordingly
:— nor is he at liberty to commute the flave for it, as he has not:
the power of transferring the property of him to any perfon. If,
therefore, the pawnee difeharge the whole fine, the flave is thereby
rendered pure; and the ftains of guilt being thus effaced, his [the
pawnee’s] claim of debt fubfifts as before: but he is not entitled to
make any demand on the pawner on account of the fum which he
paid
C h a p . IV. P A W N S. 25 7
paid in expiation of. the crime of the flave; for as it was committed
whilfl in his pofleffion, (a circumftance which occafions refponfibility*,)
the atonement for it therefore refls upon him. If, how-
ever, the pawnee objedt to the payment of the penalty, the pawner defrayed by
muft in that cafe be ordered either to pay the fine, or to make over who chargee
the flave in lieu of it; for the pawner is lh.e proprietor of the flave;
and the fine was chargeable to the pawnee merely for this reafon,
that his right is connected with the flave [in virtue of pawn,] and not
becaufe of his being in any refpeft the proprietor. Upon his refufal,
■ therefore, the claim of atonement for the offence lies againft the
pawner, as being proprietor of the flave; and the atonement, in the
pre'ent .inftance, is either paying the,fine of blood, or making over
the flave in lieu of it. I f the pawner adopt the latter alternatiye, his
debt to the pawnee is held to be completely difeharged; for the tranf-
fer having been incurred by an offence committed by the flave whilfl
in the pawnee's pojfejjion, he therefore, as it were, peri/hes in his.hands.
If, alfoj he adopt the former alternative, (that of paying the fine,')
his debt is iextinguifhed; for as the flave was (as it were) loft by the
offencre) the recovery of him was .incumbent on the pawnee, by the
payment of the atonement. Upon the pawner, therefore, difeharg-
in^fuch atonement, he, as it were, retrieves the flave, and is confe-
■ qiientlv entitled to payment from the pawnee; for which reafon the
debt is held to be annulled. It is otherwife where a perfon pawns a
(lave girl who bears a child whilfl in the pofleffion of the pawnee’;
fomif that child fhould either kill a man; .or trefpafs upon any perfon’s
property, it is incumbent on the pawner in the firft inftance to make
over the child in expiation for the murder, or in compenfation for
the damage he may have occafioned; as the child is not a fubjedl of
refponfibility with the pawnee. If, therefore, the child be given in
lieu of the blood or property, it is excluded from the contract of pawn,
1 The immediate pojfejjir of a Have is in a certain degree refponfible for his conduct.
V o L .IV . L I but