but the child
is flain for the
parent.
A mailer is
not flain for
his own or his
child’ s flave,
nor fora flave
in which he
has a fliare.
Retaliation
inherited
again ft a pa-
rent drops.
his child’s exigence, it is not proper that the child Ihould requite or
be the occafion of his death;— whence it is that a fon is forbidden to,
Ihoot at his father when in the army of an enemy, or to throw a ftone
at him when fuffering lapidation for whoredom. All the anceftors
Whatever be their character or degree, are included in this rule; and
fo likewife the mother, grandmothers maternal or paternal, and all
oth ex female anceftors, however remote; becaufe of the argument for
retaliation being univerfal, as was above obferved.
A child is flain for the parent, as the reafon for retaliation here
exifts, and there is no reafon why it fhould. he remitted.
A master is not flain for his flave, nor for his Modahbir or Mo-
kdtib, nor for the flave of his child;— becaufe, i f retaliation were due
in thofe inllances, it mult be fo at the requifition either o f the mailer
himfelf, or of his child * , the one o f which is abfurd, and the other
inadmiffible. »
If one. of two partners in a flave kill fuch flaye, retaliation is not
incurred ; becaufe it fails in the proportion of this partner’s right in
the flave, the avenger of the blood being, with refpedt to that part,
the murderer himfelf; and as it thus fails in part, it mull neceflarily
fail in toto, fince retaliation does not admit of being inflifled in part
only.
If a perion inherit the right of retaliating upon his parent, the retaliation
fails, and is remitted, becaufe of the reverence due to
paternity.
* The matter of a flave, being his Mawla, is the only perion entitled to demand fa-
tisfa&ion for his blood.
R etaliation
Re t a l ia t io n is not to be Executed but with Tome mortal weapon
*. Shapei maintains that wfe mutt execute upon the murderer
the very aft he committed upon the murdered, provided it be fuch as
isfandlioned by the l a w : if, therefore, this be done, and the mar-
derer in conlequence die, it is well; but if not, his throat mull then
be cut with a feymitar. For inltance;— i f a perfon wilfully ftrike off
the hand of another, and the difmembered perion die in conlequence
of the wound, the hand of the murderer mull firft be cut off in retaliation,
and if he die within the fame time after as the deceafed, -it is
well; but if not, he 'mull then -be put to depth. If, on the contrary,
■ a perfon produce the death o f another by Tome a£t not fandtioned in
I the law-, (fuch as by laying hold of the hands, -and pouring poilon
■ dawn the throat,— or by coition with an immature infant,) retalia-
■ tion is to be executed by putting to death; and this according to all
■ authorities.— T h e argument advanced by Shdfei, in fupport of his
■ opinion as-above, is that retaliation refts upon a perfedt equality in all
■ particulars, which requires that there be inflidted on the murderer the
■ very fame aft that he committed upon the deceafed. The arguments
■ adduced by our doctors in fupport of the contrary opinion are two-
| f o l d F IR S T , a faying of the prophet, “ There is no retaliation but
■ “ ■ with a feymitar, (meaning a /word, as is underftood by all the
■ companions.) $ Second'l y , according -to what Shafei advances, it
■ follows that, where the exadter of retaliation executes upon the mur-
| deter the fame a d that he had committed on the deceafed, and the
I end it not thereby anfwered, and he then puts ihitn to death, he takes
B more than he is entitled to, a thing which mult be carefully avoided;
B as where, -for inltance, a perfon wilfully breaks a bone of another, in
B which cafe retaliation in any lhape does not follow, becaufe o f the
Bapprehenlion of the exadter taking more than his right; an apprehen-
Bfion which applies equally in the prefent inltance.
* T h a t is, with ayiarp iriftrament, fuch as is proper to in flift a wound,
o o 2 If
i j
It lmtft :be
executed
with a mortal
weapon.
' 1HpPiHl pu
IM
-a a I I E
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