Cafes o f retaliation
for
the murder o f
a Mokatib,
I f a perfon wilfully murder a Mokatib, who has no heir but his
mafter, and leaves effects fufficient to difcharge his ranfom, the
mafter is entitled to exadt retaliation, according to the two Elders.
— Mohammed fays there is no retaliation in this inftance; becaufe here
the exigence of the ground or caufe for taking retaliation is dubious,
and unafcertained; for the caufe thereof is Willa, fuppofing the Mo~
kdtib to have died fr e e , or, right of property in his perfon, fup.
pofing him to have died a Jlave,— (as the companions have differed
Concerning the point whether a Mokatib, under the circumftances
above defcribed, died a fa v e or free, fome deciding one way, and
fome another;)— and the caufe for taking retaliation being thus doubtful,
and unknown, it cannot be exadted.— The argument of the t.wo
Elders is that the right of taking retaliation undoubtedly appertains to
the mafter, for two reafons, namely, Willa, and right of property
in the perfon; and as the effedf of. each is the fame, (namely, the
taking of retaliation,) the difference in the; caufes cannot occafion
either a difpute, or a difference in the effedt; neither is any regard
paid to fuch a difference.— T h e difference above urged, therefore,
does not prevent retaliation.
I f a perfon wilfully murder a MokAtib, who .leaves effects Efficient
to difcharge his ranfom, and has other heirs befides the mafter,
retaliation is not incurred on behalf either of the mafter or his heirs,
although both fhould unite in demanding i t ; becaufe here the perfon !
entitled [to retaliation] is dubious and unafcertained, the mafer being
the entitled perfon, if the Mokatib died a Jlave, and the heirs, if he
died fr e e , as before mentioned.— It is different in the preceding, cafe,
for there the perfon entitled is fpecific and determinate, namely the
mafier.
I f a perfon murder a Mokatib, who does not leave effects fufficient
to difcharge his ranfom, retaliation is incurred on behalf of the
mafteb
mafter, according to a ll; becaufe here the Mokatib undoubtedly dies
a (lave, as the contract of Kitctbat is .broken from his inability to difcharge
the ranfom. It.is otherwife with refpedl to a flave emancipated
in part:— in other words,— if one of two partners in a flave
emancipate his fhare, and emancipatory labour be', confequently, due
from the flave for half his value, and a perfon kill him before he has
difeharged it, he leaving no effects wherewith to make fatisfadlion for
fuch labour,— ftill retaliation is not incurred on behalf of the emancipating
partner; becaufe, as the partial manumiffion is not diflolved
or broken by the flave’s inability to perform the labour, a right in
the whble of him does not appertain to the mafter.
If a pawned flave be murdered wbilft in the poffeffion of the
pawnholder, retaliation is not to be executed until the pawner and
pawnholder unite in demanding i t;— becaufe, as the pawnholder is
not the flave’ s mafer, he is confequently, not entitled to the retaliation
; and if the pawner alone exadt the retaliation, the right of the
pawnholder, in the "debt due to him, is deftroyed.— It is therefore
determined that both muft unite in taking the retaliation, as in fuch
cafe the pawnholder’ s right is done away by his own confent.
If a perfon be flain whofe heir \Wallee~\ is an infant or an ideot,
it belongs to the father of the infant or ideot to execute retaliation
upon the murderer; becaufe the taking of retaliation is the right of
him who is endowed with the guardianfhip of the perfon entitled to
it, retaliation having been ordained on account of a matter in which
guardianfhip is interefted, namely, fatisfadlion to the mind;— and hence
the infant’s or ideot’s right to retaliation appertains to the father, in the
fame manner as. the right of contrafting them in marriage.— It is
otherwife, however, with refpedt to a brother or uncle, although they
alfo be endowed with the right of contracting the infant or ideot in
marriage; for as the father’ s tendernefs is complete, infomuch that he
regards the intereft of his child in preference even to his own, his exadtin
gO
or o f a pawned
flave.
Retaliation
appertaining
to an infant
or ideot may
be executed
by the father,