A fine is due
for flaying an
in fa n t or lu n
a tic in felf-
defence.
If a lunatic draw a fword upon a perfon, and the perfon flay him,
the fine of blood is due from his property, and does not fall upon his
Akllas. Shafei maintains that nothing whatever is incurred in this
inftance.— In the fame manner alfo, if an i f f ant draw a fword and
make an attack upon a perfon,— or if an animal attack any one, and
the perfon fo attacked flay the infant, or the anifnal, a fine is due on
account of the infant, or the value on account of the animal, according
to Haneefa, but not according to Shafei. The arguments of Stia-
fe T upon this point are twofold. F i r s t , as the perfon attacked flew
the infant or lunatic in felf-defence, they are therefore accounted the
fame as a fane perfon or an adult. S e c o n d l y , the perfon attacked
flew the infant or lunatic becaufe of their aft furnifhing him with a
reafon for fo doing. He is therefore in the fame predicament with a
perfon afting under compulfion:— in other words, if a perfon threaten
another, by faying to him, “ kill me, or I will kill you,” and the
perfon thus threatened perceive that if he do not kill the other he will
himfelfbe flain, and accordingly kill him [the compeller,] nothing
whatever is incurred;—and fo here likewife. T h e argument of Ha-
neefa is, that the flayer has in this inftance killed a perfon of perpetually
protefted blood, or has deftroyed a property [the animal] protested
in right of the proprietor. Now the aft of an animal is hot of
of a nature to do away its proteftion; neither can an infant, by any
aft, forfeit the proteftion of his blood, notwithftanding it be purely
on behalf o f his own right, infants not being capable of diftinguifhing
between right and wrong;— (whence it is that an infant guilty of wilful
murder is not liable to be put to death;)— in oppofition to an
adult, or one of found underftanding, as thofe are capable of fo dif-
tinguilhing. Still, however, retaliation is not incurred by the flaying.
of the infant or lunatic; becaufo, in the cafe in queftion, a reafon
exifts for their blood being out o f proteftion,— namely, the repulfion
o f evil. A perfon attacked by them, therefore, is allowed to flay
them, under a condition of refponfibility, in the feme manner as a
perfon
perfon who eats the provifions of another in a time of famine is
refponfible for the value ;— and the fine of blood is accordingly due.
I f a perfon draw a fword upon another, and ftrike him, and then Retaliation is
go away, and the perfon ftruck, or any other, afterwards kill this killing a per-
perfon, he is liable to retaliation. This is where the ftriker retires off, af-
in fuch a way as indicates that he will not ftrike again; for as, upon ter having ^ ° 1 m made an athis
fo retiring, he no longer continues an affailant, and the proteftion tack upon auof
his blood (which had been forfeited by the affault) reverts, retaliation
is ponfequently incurred by killing him.
I f a perfon come in the night to a ftranger, and carry off his goods A thief may
by theft, and the owner of the goods follow and flay him, nothing ^bil/i ii, the
whatever is incurred, the prophet having faid, “ Ye may kill in pre-
“ fervation o f your property.” It is to be obferved, however, that- nalty.
this is only where the owner cannot recover his property but by killing
the thief; for if he know that upon his calling out the thief
would relinquiflV the goods, and he notwithftanding negleft calling
out, and flay him, retaliation is incurred upon him, fince he in this
«afe flays the perfon unrighteoufly..
CHAP.