but they do
fo between a
Mujfulman
and an infidel.
Retaliation is
not inflidted
where a bene
iscutthrough;
nor fora J la b .
I f the cor-
refponding
member of
it follows that where (agreeably tohis tenets) retaliation holds for the
perfon, it alfo holds for the parts of the body, and vice verfa. The argument
of our dodors is, that the parts of the body are a fpecies of
■ property: now, in all matters of property, equality is deftroyed by
.any difference in the value; and this difference is perfectly evident in
the prefent cafe, as the l a w eftimates the value of the fame members,
in different perfons, at a different rate, ftating the fine for ftriking off
the hand of a woman (for in fiance) at only one half -the fine for the
fame offence committed upon a man ; (and in the fame manner there
is a difference in the value-of (laves.) As, therefore, the obfervance
of that equality, indifpenfable in retaliation, is here impradicable, it
follows that it cannot be inflided. It is to be obferved, however,
that the inequality now mentioned, (between a man and a woman,
&c.) is no objection to retaliation for the perfon, with refped to
them, becaufe the perfon, where it involves the life, is not held in
the fame light with property.
R e t a l i a t i o n for parts of the body holds between a Mujfulman
and an infidel, both being upon an equality with refped to fines for the
offences in queftion.
If a perfon (trike off the hand of another above the wrift-joint,—
or give him a Jlab in any part, which afterwards heals, there is no
retaliation; becaufe here it is impoffible to obferve equality, fincc
in the former cafe bones are broken, and in the latter it is likely that
if retaliation were inflicted the offender might die, a (tab being frequently
incurable.
If a-perfon paralytic * , or having ^withered hands, (trike off the
hand of a found perfon, he who is thus difmembered has it at his
A rab . S h ill, meaning a perfon afflicted with-a palfy in the hands.
option
option either to cut off the defedtive hand (and nothing more,) or to
take the complete fine for his own hand; for as, in this inftance, he
cannot poffibly obtain his precife right, he muff therefore be irecefla-
rily content'to take (omething lefs, or to accept o f a fubffitute,
namely, the fine;— in the fame manner as where a perfon deftroys
the property o f another, of the clafs o f fimilars, but the fpecies of
which is. no longer to be found, except what is decayed in which
cafe the proprietor of the deftroyed article has it in his option either
to take the decayed fimilar,' or the value of what he has loft.. Thus,
in the cafe in queftion, the dilmembered perfon may either take the
defedtive hand of themffender, or a fine for his own hand;— and as
upon his ftriking off the defedtive hand, it is evident that he is content
therewith, his.fight to any thing elfe then fails, in the fame manner
as where a decayed .fimilar is accepted in lieu of an »«decayed fimilar.
.If,, in this cafe, the hand of the offender mortify and drop off, or be
unlawfully (truck off, before, the perfon whom he had difmembered
has made his choice o f fine or difmemberment as above, he is not then
entitled to any thing, according to our dodtors;— becaufe his appointed
right was retaliation, which cannot now be obtained, from the cir-
cumftance of its (ubjedt no longer exifting; and as th0 property £finel
coulej; not be due, or obligatory, but from being chofen in preference
before the cutting or dropping off of the hand, and the choice has not
been made, his right confequently fails, and entirely drops. It is
etherwife where a perfon, having defedive hands, ftrikes off the hand
of another, and then has his own defedtive hand (truck off for theft,
pr in retaliation; for in this cafe he mull pay the fine for a perfedt
hand, fince here, as his hand has been loft in fatisfadion of a right,
it (till (as it were) remains, and he oppofes the retaliation.
* As In the cafe o f a perfon deftroying any kind o f fr u it towards the clofe o f
the feafon.
■
the maimer
be defedtive,
ftill nothing
more is due
than t f la t , or
a f in e ;
and if fuch
member be
(in the mean
time) loft,
nothingwhat-
ever is due.
V o l . IV.
T h e r e