health, in which cafe he is (lain in return. T h e argument of our
dodlors is, that retaliation refls merely upon equality in point of pro-
tection to the blood; (in other words, it depends upon the blood of
both parties being in perpetual protection, and never in a neutral
Hate;) and accordingly a perfon in health is put to death for a vale-
tudinarian, an adult for an infant, and a maniac for one in his perfedt
fenfes;— becaufe both parties are upon a footing in point of protection.
Now this protedtion is a confequence either of religion or country;
and as a (lave and a freeman are both equally in thefe refpedts entitled
to it, a freeman may therefore be put to death for a flave.
and aMufliil- A M u s s u l m a n is put to death for a Zimmee. Shqfe'i maintains
TnanloxiZim- a MuJJuhtuin is not to be put to death for a Zimmee; becaufe the
prophet has faid, “ A M u s s u l m a n is not to fiufifer death fo r an in-
“ f id e lf and alfo, becaufe there is not a perfect equality between the
parties at the time of the offence, G o d having faid, “ Infidels art
“ not the equals o f believers and alfo, becaufe as infidelity puts the
blood out of protedtion, there is in this inflance a doubt concerning
its neutrality, preventive of retaliation. T h e arguments of our
dodlors upon this point are twofold.— F ir st , it ‘is recorded of the
prophet, that he once flew a Mujfulman for a Zimmee.— S e c o n d l y ,
an equality mufl neceflarily be eftablifhed on the part o f the Zimmee
with refpedl to protedtion o f blood, when we confider the circum-
fiance of country, and the duties of life; for if his blood were not pro-
tedled, it would be impoffible for him to difeharge the various duties
required of him as a member of the community. With refpedl,
moreover, to what is advanced by Shafei, it may be replied, that by
the infidelity which puts the blood out of protedtion is to be under flood
the infidelity of an hofiile unbeliever, as thofe are the infidels who hold
enmity with Mufiulmans, and not Zimmee infidels. The rule, moreover,
of retaliating upon a Zimmee for a Zimmee affords an argument
that the infidelity of a Ztmmee does not occafion any doubt with regard
to the protedtion o f his blood, fince i f this were a matter of doubt, a
5 Zimmee
Zimmee' would not be flain for a Zimfnee. Befides, by the term infidels
(in the faying o f the prophet' adduced by Shqfe'i) muft be underflood
Moofidmins, or protected infidels, as appears from what the prophet
further faid, (in the-fame tradition,) “ A .Zimmee is not to be
“ fa in fo r an in f id e l ,” (meaning a Moofidmin.)
A M u s s u l m a n is not to be flain for a Moofiamin, as the blood of a A Muffulmau
Moofidmin is not in a continual flate of protedtion,— and his infidelity a Umfiamin-,
is, moreover, an occafion of hoflility, fince a Moofiamin flill entertains
an intention of returning to his own [an hofiile] country. Neither is
a Zimmee to be flain for a Moofidmin,. becaufe of the tradition of the
prophet before noticed.
A na logy fuggefls that a Moofiamin is to be flain for a Moofidmin, noroneM^
both being upon a footing. T h e benevolence of the law, however, other. -
determines that one Moofidmin is not to be flain for another; becaufe
here the infidelity which occafions enmity exifls with refpedl to the
parties; and as that puts the blood out of protedtion, there is therefore
a doubt with refpedl to its being protedled fufficiently to prevent
retaliation.
A man is flain for a woman, an adult for an infant, and a found A man is flain
perfon for one who is blind, infirm, difmembered, (that is, deprived ami theysw
of an eye or a limb,') lame, or infane ; becaufe the argument of reta-
liation is univerfal; and if regard were paid to a difparity in thofe particulars,
as well-as. in point of protedtion to the blood, retaliation
would be in a great meafure prevented, and contention and bloodfhed
would confequently prevail among mankind. ,
A father is not to be flain for his child; becaufe the prophet has The parent ;s
faid, “ Retaliation mull not be executed upon the parent for his off- not flain for
I „ . „ I ■ I M , I f a ,- r C' the child,
Jpring; and alio, becaufe, as the parent is the efficient caule of
V ol. IV. O o his