afting the retaliation on account of his child is the fame-as the child
himfelf exadling it; which is not the cafe with a brother or uncle
whofe tendernefs is of a defedtive nature, they preferring their own
intereft to that of their brother or nephew,— whence in committing
the right to them, the intereft of the infant or ideot is not to a certainty
purfued.— Befides, the executing of retaliation is an adt which
cannot be afterwards undone; in oppofition to marriage, which may
be undone.—T he y, therefore, are not empowered to take retaliation.
at^Hberty’to . T he father of an infant or ideot ’is empowered to compound recommute
it taliation for a fine, -on their behalf, this being advantageous to them •
for a fine. , , . . ° °
— but he is not empowered to remit the retaliation gr.atuitoufly, a?
this would be deftructive of their right.
If a perfon wilfully ftrike off the hand of an infant or ideot, the
father o f filch infant or ideot majr either ftrike off the hand of the offender,
in retaliation, or compound the matter for a fine,^-ffor the
reaflons already mentioned.
T h e power, A guardian appointed by w ill* is the fame as a father, with
m this par- r n. n i • t • ’
ticular, o f reipe6t to all the points above mentioned,— except retaliation by flaypqi?
ntVdbVap" ino> for h e is not entitled to put the murderer to death, as he has.
no power over his life, and the taking of retaliation is an effed of
power over life— From this (k is to be obferved) we may infer that
the: guardian in'queftion is at liberty-to enter into compofitions for a
fine in lieu of life, and alfo to take retaliation in all matters fl:ort (if
life, nothing being excepted beyond adlual flaying__It is indeed afferted,
in the treatife on Conipojitions, that an appointed guardian is
ndt at liberty to compound life for property ; for as this is an aft
with relpedt to life, being an acceptance of a return for life, fuch
* Arab. Wafee— I t alfo fignifies (more lite rally) an executor, - k t is here ufed in op-
pofition to a natural guardian.
5 compolition
eampofition is equivalent to taking retaliation;— and as the one is not
allowed to an appointed guardian, fo neither is the other.— The rea-
fon, however, for what we have mentioned above, is that the end,
in compolition, is p ro p e rtywhich is rendered obligatory by an engagement
with an appointed guardian, in the. fame manner as with
a father. It is otherwife in retaliation; for the end, in that, is purely
revenge, and fatisfadlion ta the mind, which are reftridted alfo
to the: father, as he, becaufe of his near relation,, and tender affection,
is. the fubftitute o f his child with reipedt to them.— Lawyers .
have,obferved that, according to analogy, an appointed guardian is,
qqt empowered to exaQ: a retaliation fie r i of life, any more than a
retaliation which extends to life; becaufe the end, in both, is the
revenge and fatisfaftipn already mentioned:— but that, according to
a morp favourable conftrudti.on of the law, he is.fo empowered; becaufe
the parts of the body are equivalent to property, as havino- been,
like property, created for the fupport and preservation of life ; and
hence thpjpxadtmg o f a retaliation fliort of life is merely equivalent
to an adt with relpedtto property.
I f a perfon murdered leave heirs, fome infants, and fome adults, Cafe o f a
according to Haneefa, the adult heirs are entitled to put the murderer
to death. The two difciples, on the contrary, maintain that they in? feveral
are not entitled to flay the mur.derer until fuch time as the infant S ’tsf and
heirs attain maturity; becaufe retaliation is aright equally partici- fomeaduUs'
fated in by all the heirs ; and. it is impoflible for the adult heirs to
take their right, (namely, part of the retaliation) as retaliation is in-
divifible; and if they take it in toto, the right of the infant heirs is
deftroyed.— A delay is therefore indifpenfable until the infant heirs become
of age;— in the fame manner as where a right of retaliation is
poflelfed by two men, and one of them is abfent,—in which cafe the
One who is prefent cannot exadt the retaliation until the abfentee be
alfo prefent;— or, as where a Have held in par.tnerfliip between an infant
and an adult is murdered,— in which cafe the adult cannot take
- retaliation