288
Retaliation is
incurred from
killing by a
blow with the
ir:n o f a
fpade, &c.
but not with
the Jhaft.
O F F E N C E S againfi B oo k XLIX.
retaliation until the infant have attained maturity.— T h e argument
of Haneefa is that retaliation is not divided; for retaliation is efta-
bl idled on behalf of relationfhip, which is not of a divifible nature,
fince if a. man have two brothers (for inftance,) a complete relatioii-
{hip belongs to each,-—not one half to 6ne and one half to the other;
aud there is, moreover, no room, for the prefent, to apprehend that
the infant might grant the murderer a pardon, fince to that he is in-
competent during his minority.—T h e right of taking retaliation is
therefore eftablithed to each in toto, in thi-s way, that each is l(a,$ it
were) diftinft and feparate,— in the fame manner as guardians in
marriage, each of whom pofleffes a power to contract the ward in
marriage independent of the others, and as i f no other exifted.— It is
otherwile where retaliation is divided between two adults, one SF
whom is abfent;— for here exifts the apprehenfion of a prefent pardon
from the abfentee.— With refpeft to the cafe of two partners in a
flave, adduced by the two difciples, Haneefa does not admit it as any
objection, fince (according to him) in this cafe alfo the adult mafter
is entitled to exadt the retaliation.
I f a perfon ftrike another with a fpade, or fhovel, and the perfoii
{truck die in confequence, and the blow have been given with the
iron part of fuch lpade or {hovel, the murderer is liable to be put to
death.— If, on the contrary, the blow have been given with the
•wooden part [the handle or {haft], he is refponfible fora fine; becaufe
he has {lain a perfon of protected blood; and as retaliation is in fuch
cafe forbidden, the fine is due, in order that the blood may not be
Ihed without penalty.— Our author here remarks that the murderer,
in the former inftance, is liable to be put to death only when he
ftruck with the edge of the iron part, as by this alone a wound (which
demands retaliation) can be inflicted; and that i f he have ftruck with
the back of the inftrument, not with the edge, there is a difference of
opinion-among our dodtors,— the two difciples holding that in this
inftance alfo he is liable to fuffer death, as regard is paid folely to the
life
life of an inftrument of murder, which here exifts,— and Haneefa,
on the contrary, maintaining that he is not liable to death, as retaliation
is not incurred unlefs a wound be inflicted.— This laft is the
better opinion," as IhalLbe prefently made appear.
I f a perfon immerfe another, whether an infant or an adult, into It is not in-
a water whence it is impoflible for him to efcape by fwdmming, (as Z lfJ L n y
the fea, for inftance,) retaliation is not incurred, according to Hi?- Per*°n-
neefa. T h e two difciples, on the contrary, maintain that retaliation
is incurred; and fuch alio is the opinion of Shcfe'i; with this difference,
however, that according to the two difciples it is infiidted with
a weapon, whereas according to Shafdi the murderer is to be drowned.—
The arguments of thofe dodlors, in fupport of their opinion
upon .this-point, are twofold.— F i r s t , a faying o f the Prophet, “ I f
“ any perfon drown another, I Jhall drown him. in return." S e c o n d l
y , water is an inftrument o f murder, the fame as fire, wherefore
the ufe of it is an argument o f wilfulnefs in the aft ; and as there is
no doubt with relpedt to the protedion of blood o f the {lain, retaliation
is confequently incurred by him.— T h e arguments of Haneefa
are alfo twofold.— F i r s t , water is analogous to a fmall ftick or rod,
as it is feldom or never ufed in murder. Now it is faid, in the traditions,
that death produced by a rod is merely manfiaughter; and as,
in that, a fine merely is incurred, fo here likewife. S e c o n d l y ,
retaliation requires the obfervance of a perfeft equality; but between
drowning and wounding there .is no equality, the former being fhort
of the latter with regard to damaging the body.— As, therefore, the
mfhdhon of retaliation is in this caufe impoflible, a .fine is confequently
due .from the M ila s of the flayer— With refpeft, moreover, to
the faying of the prophet, adduced by the two difciples, the drowning
there treated of is to be regarded merely in the light o f a punifh-
mnt, and not as retaliation-, for i f the prophet had meant retaliation,
he would have referred the execution o f it to the relations o f the
rowned perfon, and not to [himfelf] the tnagiftrate.
Vol. IV. P p If