both counts in all thefe cafes *.'—T h e ground o f this is that both the
wounds muft be confidered under one head, if it' be poffible that the”
fecond wound was merely a completion of the fir fi, as flaying is moil
frequently effedbed by feveral fficceffive \v0und3; for if each1 wound
were Confidered feparately, one being regarded as mortal, and the
other not, it would create a difficulty in the determination.— The
fecond wound is therefore to be regarded merely as a completion; of
the firft, and both included, under oiuy lenience,.—except where this
conjunction is impoffible, when: each wound muft be confidered under
a feparate head.— Now, in the four cafes here ftated,. this con-
junCtion cannot be made; for, in the two fir ji cafes, the two ads are
fubjeft to two different fontences,..—and in the two others^ the fecond
wound is not inflicted until .after the party has recovered from the
jirf^. a circumftance which prevents the one from having any con"
nexion with the other.— I f the fecond wound be inflidted before the
firft is healed,, and. the afts be both of the fame, fpecies* both being
by mifiake, they are refolved under one head, undifputedly,, fincea
conjunction is in this inftance poffible;:— and therefore one fine fuf-
fices.— If, on the contrary, the offender firft ftrike o ff the hand wilfully,
and then, before the wound is healed, kill theperfon wilfully,
the magiftrate may defire the heirs either firft to ftrike off the offender’s
hand, and then to put him to death,— or to put him to death
at once, without ftriking. o ff his h a n d i n other words, the heirs
have either of thefe modes in their choice, .and the magiftrate alfo is
at liberty to determine either way.— This is according to Haneefa.—
T h e two difciples maintain that the offender, in this inftance, can
only be put to death, and is not to have his hand ftruck o ff befides;
for here it is poffible to refolve both the wounds under one head, both
* In the f ir ji o f thefe cafes, therefore, the offender’ s property is- fubjedfc to a fine for
the Hand, and he alfo foffers retaliation for the murder; in the Jecond, he is fubjedl to retaliation
for the hand, and alfo to a fine for the homicide ; in the third, he is fubjedt to a
fine for the hand, and alfo'to a fine for the homicide; and in. the fo u rth he fuffers retaliation,
firft for the handy and then for the murder..
the
(he adfs being of one fpeci'es, namely wilful. T h e argument o f Haneefa
is that in this cafe a conjunction of both wounds under one
head is impoffible; becaufe the two adts are efientially different, one
being merefy the difmemberment of a part of the body, whereas the
other is a deprival of life.— Both, moreover, as being w ilful, are
fabjedt to the fame rule, namely, retaliation ; and retaliation requires
an equality with refpedt to the aft, which, in the cafe in queftion,
cannot be obferved but by taking life for life, and a hand for'a hand:
but if both wounds be refolved under one head it is impoffible to pre-
ferve equality, becaufe in that cafe the offender is only {lain, without
any retribution for the difmemberment.— Befides,< the murder
prevents any reference of the confequence to the difmemberment,
infomuch that if the two adts were to proceed from two different
perfons, retaliation would be due upon the murderer.— Thefe two
offences are therefore fubjedt to the fame rule as the two between
which a- recovery- intervenes *..
I f a perfon . give another one' hundred'ftripes [with a flick or Cafe « fa red,]’
and the perfon fo ftruck recover from ninety of the ftripes, .fo •fnconfed-y”1S
as that no mark of them remains, and then die in confequence of the J S “ anpf[tl,
fen laft ftripes, . one fine of blood iiffidue;— becaufe, .upon his recover- - l y in f l i a e d , ,
ing from , ninety of the ftripes,. they are no. longer of any confidera- •
tion with refpedt to the fine, notwithftanding they ftill be fo w ith '
refpedt to corredticin; and hence, with refpedt to the fine, no more
than ten ftripes remain to be confidered.— T h e fame rule obtains with t
refpedt'to every wound which heals and leaves no mark, according to •
Haneefa.— Hhoo.Toofafa\\edges that in fuch cafes a fine, is due in pro- -
portion to the pain or trouble fuftained ;— in other words, an eftimate -
muft be. made of what is the adequate recompence for fo much trouble,
and the refult gives the fine to be impofed,— Mohammed, on thec
* A long train, o f futile reafoning is here omitted, as being o f no confequence what-
ever to the fubjedt, nor tending to.throw.any new light upon it. 6 other r