although the
perfon from
whom it originates
be an
offender.
General rule
in offences
fhort o f life.
T he digger of the well, or fetter-up of the ftone*, is an offender
becaufe of thefe ads,— that is, becaufe o f digging the well, or fo
forth, in land not his own property, and not becaufe of the death
thereby occafioned,— according to the opinions of the learned. Homicide
by an intermediate caufe, therefore, does not require expiation •
nor doés it exclude from inheritance, (as has been already mentioned,)
becaufe fuch exclufion is a penalty annexed to the adu-al offence of
bloodfhed, which does not here exift.
W ha tev er has the femblance merely of a wilful ad, whërelife
is affeded, amounts to w ilful in any thing Jhort of life; becaufe the
deftrudion of life bears a different conftrudion according to the in-
ifrument by means of which fuch deftrudion is produced;—whereas
the deftrudion of a limb or member does not bear any difference of .conftrudion
from that circumftance; for by bloodfhed is underflood an ad
by which the vital principle is extinguifhed; and the vital principle is
not a matter of a palpable nature,.—nor can the intention of deflroying
it be difeovered but from the ufe of fome mortal weapon; whereas a
limb or member being a palpable thing, the inftrument ufed in deftrop
ing it does not oceafion any difference in the conftrudion of the, aft
by which it is deftroyed. Befides, if an inftrument of manflaughter
(fuch as a rod) be ufed with an intention to kill, the ad is murder,—
whereas if it be ufed merely with a view to corretlion, and produce
death, it is only manflaughter; but thefe diftindions do not exift in
any matter fhort of life, fince in the fame manner as the deftrudion
o f a member may be intended by the ufe of a weapon, fo may it like-
wife by the ufe of any thing elfe; for as an eye (for inftance) maybe
put out by a weapon, fo likewife may it by a fmall rod; and qonfe-
-quently the ad is equally wilful in either inftance.
* In the public high-way, which may be an intermediate caufe o f homicide, byoepa-
fioning the death o f a pafTengcr. (T h is fubjedt will be difculled at large in the next book,
under the head o f N uifances.)
C H A P . II.
Of what occalions Retaliation.
R e t a l ia t io n is incurred by the killing o f a perfon whofe blood
is under continual protedion * , where the perpetrator flays him wilfully.
T h e reafon for ftipulating that the ad be w ilful has been already
explained; and it is alfo a condition that the perfon (lain be one
whofe blood is under continual protection, in order that the doubt with
refped to the neutrality of his blood may be removed, and an equality
certified [between the flayer and the flain,] as equality is the point
upon which retaliation turns.
A F reeman is flain for a freeman;— and alfo for a {lave the property
of another, the argument for retaliation being univerfal, as was
before explained. Shafei maintains that a freeman is not to be flain
for a flave; becaufe G od has faid, in the K oran, “ T he free
SHALL DIE FOR TH E FR E E , AND- THE SER V AN T FOR TH E SERV
A N T ; and alfo, becaufe retaliation refts upon equality, which
does not exift between a freeman and a flave,—whence it is that the
hmb of a, freeman is not ftruck off for the limb of a flave:— in oppo-
fition to a fa v e fo r a fa v e , as thefe are on a perfed equality; and
contrary, alfo, to the cafe of flaying a flave for a freeman, for here
the defed is on the part of the flayer, which is no obftacle to retaliation;
as where, for inflance, a paralytic perfon murders one in perfed ■
t Such as a M ujfulm anor a Zimmet: in oppofition to aliens, who have only an occa~
Jional and temporary, protection*.
Retaliation is
incurred by
the wilful
murderofany
perfon o f protected
blood.
A freeman is
flain for a
flave the pro*
perty o f another
r