or being cut
thereby.
Forgivenefs
by a maimed
perfon does
not exempt
from a fine,
in cafe of his
death,
unlefs it extend
to any '
confequence of
the maiming.
other hand, fays that nothing is due in fuch a cafe except the expences
of the phyfician or furgeon.
If a perfon give another one hundred ftripes, and thereby cut
him, and the cuts heal, but leave fears, an Hakoomit Adil, or
award of equity, is due on account of fuch,fears.— (An explanation
° f Hakoomit A dil fhall be given in its proper place *.)
I f a perfon ftrike off the hand of another, and the perfon fo dif-
membered pardon the difmemberment, and afterwards- die in confequence
o f it, a fine of blood is due,— from the offender’s property,
i f the offence was wilful,— or from his ; Akilas, if it was by mif-
adventure. If, on the other hand, he pardon not only the difmemberment,
but alfo any confequence which may arife from it, and
afterwards die of the wound, his pardon comprehends both life and
difmemberment;— and then, i f the offence was committed by miffake,
the pardon is eflimated as from one third of the deceafed’s property-)-;
but if it was committed wilfully, the pardon is in that cafe eflimated '
as from the whole of the property The reafon of this is, that the
decree in wilful murder is retaliation; and as retaliation is not property,
the right of the heirs is not conneded with it before the de-
mife of the wounded perfon, wherefore the pardon and remiffion are
valid on his part, and are confequently eftimated as from the whole
of his property. Manllaughter, on the contrary, is fubject to the1
law o f property; and as the right of the heirs is conneded with the
dying perfon’s property, the remiffion, therefore, in fuch cafe,, is
eftimated as from the third of the property; becaufe it is .a gift of the
fine; and the gift of a dying perfon takes effed in one third ; and as
this is a bequeft to the Akilas o f the murderer, not to the murderer
* In the next following book, treating o f F in es.
t T h a t s i to fay, it has e f fe a in remitting one third o f the fine ; hut fails with refpeft
to the other two th.rds, which therefore ftill remain due, notwithftanding the pardon,
i In other words, it has effedt in a complete remiffion o f the fine.
himfelf'*, it is confequently valid.— This is according to Haneefa.—
The two difciples maintain that pardon for the difmemberment extends
alfo to life ;— (and the fame difference o f opinion obtains where
a perfon pardons another for giving him a-cut, of which he afterwards
dies.) Their argument is, that the pardon of the difmemberment is
alfo a pardon of its effed, which muft be one of two things, namely,
the lofs o f a hand in cafe of a cure, or the lofs o f Ijfe in cafe the wound
prove fatal. A pardon of difmemberment, therefore, is alfo a. pardon
of one of thefe effeds, whichever it may happen to prove. Another
argument is, that the term difmemberment extends both to a mortal
wound, and alfo to one not mortal; and therefore a pardon of difmem-
berment is a pardon either w a y ; this being the fame as a pardon of an
offence-,— in other words, i f the wounded perfon were to fay, “ I par-
“ don this offence,” a pardon is eftablifhed in both ways, the term
offence cbmprehending mortal wounds and alfo wounds not mortal.
T h e argument of Haneefa is, that here a caufe of refponfi-
bility is eftablilhed in the death of a perfon whofe blood was in a continual
ftate of value and protedion; and to this the pardon does not
exprefsly extend, becaufe it was granted with refped to the difmem-
\bsrment, which is different from the death; and in confequence of the
wound proving mortal it becomes evident that the a d was in reality
murder; and with that alfo the right of the murdered perfon is connected;
and as no pardon was granted with relped to that, a decree
of refponfibility for it iffues. Analogy would fuggeft that retaliation
is incurred for it, as being a w ilful murder; but on a more favourable
conftrudion of the l aw a fine only is due, as in confequence of forgiving
the difmemberment a demur is engendered, and retaliation is
repelled by any demur. In reply, moreover, to the arguments of the
* T h e reafon o f this diftin&ion is, that any bequeft b y a murdered perfon on behalf o f
his murderer is null.— T h e pardon is here confidered in the light o f q bequeji; for as the fine
or his hand virtually belongs to the difmembered perfon from the inftant o f the a f t , his re -
miffion o f it is, in effe£t, a bequeji o f it to the A kilas o f the offender.