II. Man-
Jlm ghttr ;
which is alfo
criminal; requires
expia-
S h a b b a h - a m d , or manflaughter, according to Haneefa, is where
the perpetrator ftrikes a man with fomething which is neither a weapon
nor ferves as fuch. T h e two difciples and Shafei maintain that if
the ftroke bs given with a large ftone, or a club, the aft amounts to
wilful murder. Shabbah-amd, or manflaughter, on the contrary,
(according to the two difciples,) is where a perfon ftrikes another
with fomething of a nat ure not likely to produce death, fuch as a fmall
fiick . For as, in this cafe, the property o f w ilfu l*, in the aft is
defeftive, (inafmuch as the perpetrator here ufes an inftrument not of
a mortal kind, the intention being fomething elfe than death, namely,
injlruclion, or fo forth,) it follows that killing a perfon with fuch an
inftrument is merely a femblance of wilful murder;— whereas the property
of wilful is not defeftive in cafe of a man ftriking another with
an inftrument of a nature to produce inftant death, fuch as a great'
fione,— for here the intention can only be to kill, as well as with a
fcimitarj— this, therefore, is wilful murder, and occafions retaliation.
T h e argument adduced by Haneefa is a faying of the prophet, “ Kill-
“ ing with a rod or fiick is not m u r d e r , but only m a n s l a u g h t e r -)-,
“ and the fine fo r it is one hundred camels.,r Another argument is,
that as the inftruments in queftion are not commonly ufed with a
view to kill, (whence it is that the property of w ilful is- defeftive
therein, confidering the inftrument ufed,) killing, therefore, with
fuch inftruments amounts only to manflaughter, in the fame manner
as killing with a rod or a fmall flick.
M anslaughter is finful, the perpetrator having ftruck intentionally,
and killed, although without delign ; and it requires expia-
* T h e term amd [wilta l] is ufed, in the Mufjidman law, in a fenie: analogous to the*
malicium o f the Roman law.
f Literally, « is merely Shaeeah-am d ;” in other words,. “ is merely a SEMBLANCE
“ o f w i l f u l [murder.’] W h e re technical terms, o f a nature not to bear tranflation, occur
fo frequently, fome liberties m u ll neceffariLy be taken with.the text..
tion,
tion, becaufe of the femblance it bears to homicide by mifadventure.
An heavy fine is alfo due from the Akilas of the flayer, becaufe of the
analogy this offence bears to homicide by mifadventure; for it is a rule
that in all cafes where the fine ^ is due for bloodfhed at the firft, and
not on account of any fupervenient or involved matter, it falls upon
the Akilas, as being connected with homicide by mifadventure. T h e
reftriftion, in this particular, to “ at the fir fi," is in order to dif-
tinguifh this from the fine incurred on account of fome other matter,
and not on account purely of the bloodjhed;— as where, for inftance,
a father wilfully kills his fon, in which cafe the fine falls immediately
upon the murderer, and not upon his Akilas,— for here retaliation is
incurred at the firft, prior to fine, but is commuted for a fine out of
reverence to the parent;— or where one of the heirs o f a perfon wilfully
murdered forgives the offence, in which cafe the other heirs are
entitled to the fine;— or where the heirs of a perfon wilfully murdered
enter into a compofition for the fine;— for in all thefe inftances the
fine is due from the property of the murderer, and does not fall upon
his Akilas, as not having been due at the fir fi.
In confequence of manflaughter an heavy fine is due from the
Akilas [of the perpetrator,] payable within three years; becaufe it is
recorded of Omar that he thus ordained in fuch cafes. (The meaning
of an heavy fine fhall be prefently made appear.)
O n e effeft of manflaughter is that it excludes the flayer from inheriting
to the flain, this being-the proper recompence of bloodfhed.
The doubt, moreover, which obtains in this fpecies of bloodfhed occa-
fions a remiflion of retaliation, but does not prevent an exclufion from
inheritance.
tion ; fubjeéts
the Akilas o f
the murderer
to the payment.
o f a
heavy fine.
(payable
within three
years;)
and excludes
the man-
flayer from
inheritance.
* Always meaning (throughout this book) the D ey it9 or fin e o f blood.
N n a T he