which is cri-
tninal, and
fubjeds the
ofFender to
retaliation.
argument, it may be concluded, where fuch an infiniment is ufed
by the flayer, that murder was his intention.
I f a perfon commit wilful murder, two points are eflablifhed.
I. that the murderer is a criminal; becaufe it is faid in the KoRanj
“ W hoever slayeth a believer, his reward is hell;’/
and the fame is repeatedly mentioned in the traditions ; and all authorities,
moreover, concur in this point. II. that the murderer is—
liable to retaliation; becaufe the Koran fays, “ I t is incumbent
“ ON YOU TO EXECUTE R E T A L IA T IO N UPON MURDERERS,” — by'
whom is to 'be underflood perfons guilty of wilful murder, as it is faid
in the traditions, “ JVilful murder requires retaliation— An offence
is, moreover, rendered complete by the intention, and complete pu-
nifhment (underflood by retaliation) is incurred where that exifts, but
otherwife not. In fhort, retaliation is incurred in a cafe of wilful
murder, except where the heirs * of the murdered perfon either forgive
or compound the offence, retaliation being their right. It is proper,
alfo, to obfervè, that retaliation is the appointed penalty in ;this
inftance ; and the heir is not at liberty to commute it for a fine, but
with the confient of the murderer. This is likewife one opinion of
Shafe'i. He however fays, that the heir is at liberty to remit the re; •,
taliation, and exadt a fum in lieu of it, without the murderer’ s confient
; for as this ocçafions his releafie from deflrudtion, it is copfe-
quently lawful indépendant of his will. Another opinion of, his pis. ■
that one of two things is incurred, ynthout any particular appointment
or fpecification of either,— namely, retaliation, or fine ; and
that this determination refis, with the heir,— (that is, one or other
* Arab, Awleya, plural o f IVallee. T h is term has a multitude o f meanings, as has
been already repeatedly obferved. In the prefent inftance it lignifies the next o f kin, or
other perfons entitled to exadt retaliation, as is more fully explained in treating of the
levying o f fines. T h e term heir, although liotftridtly literal, is adopted as being the moil
analogous for the convenience o f the E nglilh reader.—-IVallee-ad-dam is- for the fame
reafon rendered avenger o f blood.
becomes
becomes determined, according to his choice;) becaufe the l aw endows
the individual with a right for the reparation of his injuries; and
the injury, in the prefent inflance, is repaired either way. T h e arguments
of our doctors in fupport of the former opinion are twofold.
First, what has been already quoted from the K oran and the traditions.—
Secondly, property is incapable of being a reeompence for
murder, fince between property and a man there is no equality or com-
parifon,— whereas retaliation poffeffes this capacity, becaufe of the
equality between the perfons of the murdered and the murderer;—
and it is, moreover, advantageous to the living, fince by the execution
of a murderer men are deterred from committing this
offence.
T here is no expiation, in a cafe of wilful murder, according to
our doctors. Shafe'i maintains that expiation alfo is incumbent * ; for
as the neceffity for expiation is flill more urgent in a cafe of w ilful
murder than in a cafe o f homicide by mifadventufie, it follows that in
the former inflance it is incumbent a fortiori. The argument o f our
dodtors is that wilful murder is a peculiarly heinous offence; and as
expiation bears the property o f an adt of piety, the performance of it is
not to be annexed to an offence of that defcription. Expiation, moreover,
is appointed by the l aw in attonement for the fmaller offence,
namely, homicide by mifadventure; and it does not hence follow that
it is appointed in atonement for the greater offence alfo, namely,
wilful murder.
O n e effedt o f wilful murder is that the murderer is excluded from and excludes*
being heir to the murdered perfon; for, in the traditions, It is faid, B B S
“ There is no inheritance to the murderer''
T h a t is, befides the fuppofing retaliation to be remitted in lieu o f a fin e ; for
wnere retaliation is executed, expiation is out o f the queftion.
V o t . IV. N n
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li III
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