Cafe of a woman
marrying
a man in
recompence
for maiming
him.
two difciples it is anfwered, that the confequence [death] is murder
trom the beginning, and not merely one defcription of effedt produced
by difmemberment; and therefore a pardon of the difmemberment is
not a pardon of the murder. It is otherwife in the pardon of an offence,
as the term offence comprehends both murder and maiming. It
is alfo otherwife in the pardon o f a cut, and o f every confequenct
which may arife from it, iince in this cafe the pardon is exprefsly extended
to death itfel.fi
I f a woman ftrike off the hand o f a man, and marry him, as a
■ recompence, and he afterwards die of the wound, the woman is entitled
to her proper dower, and a fine of blood is due— from the
Akilas if her offence was involuntary," and from herfelf i f it-.was
wilful; becaufe, according to Haneefa, a forgivenefs of the difmemberment
is not a forgivenefs of the confequence, and therefore her ■
•marrying him in recompence for the difmemberment merely implies \
a pardon of the difmemberment itfelf, but not of any effedt which
may refult from it. Hence fhe is ftill liable to the fine of blood at ]
cafe the man die. It is here to be obferved that if the difmemberment !
have been wilful, the marriage on account of fuch difmemberment is
a marriage in lieu of retaliation; and as retaliation, not being property,
is incapable of conftituting a dower, the woman is ftill entitled j
to her proper dower. A dower being therefore, due to the woman,
and a fine owing from her, there is a mutual liquidation in cafe both
be of an equal amount; or if the fine be more than the dower, the
■ woman is to pay the difference to her hufband’ s heirs; or i f it be iefs, ■
the heirs muft pay her the difference. If, on the contrary, the difmemberment
have been accidental, the marriage is in lieu of a muld
for the hand; but as, upon the difmemberment proving fatal, it is
ascertained that no fine is due for the hand, it follows that the fpeci-
fic fum which flood for the dower no longer exifts, and confequentlj
that a proper dower is due;— in the fame manner as where a woman
marries a man “ fo r what is in his h a n d f— and it prove that he had
nothing
nothing in his hand,— in which cafe a proper dower is due, and fo here
likewife. In this laft inftance, moreover, there is no mutual liquidation
of the dower by the fine of blood [due in confequence of the
hufband’ s deceafe;] becaufe, as the'offence'was not wilful, but by
mifadventure, the .fine falls not upon the woman, but upon her Akilas,
— whereas the dower is the right of the woman herfelf; and there can
be no mutual liquidation unlefs each party owe fomething to the
other.
I f , in the example above ftated, the man marry the woman “ as
“ a fatisfadlion for the difmemberment, and every confequence which
“ may refult from it,” ' or “ as a fatisfadtiou for the o f f e n c e and he
afterwards die of the wound, the woman is. entitled to her proper
dower if the difmemberment was w ilfu l; becaufe, in this cafe, fhe
married in lieu of retaliation; and retaliation, not being property, is
incapable of conftituting a dower;— in the fame manner as where a
woman marries for wine or a hog-,— in which cafe, thofe articles not
being property, fhe is entitled to her proper dower;—and fo here
likewife. In this inftance, moreover, the retaliation is completely
remitted, and nothing remains due from the woman [in lieu o f i t ;]
for upon the man conftituting retaliation the dower, he becomes content
that it Ihould be remitted on behalf o f the fame. T h e original
retaliation, therefore, ceafes, in the fame manner as where a perfon
remits retaliation on the condition of its being converted into property;
and no fine is due (in confequence of the deceafe of the wounded
perfon,) becaufe the offence was w ilfu l*. If, on the contrary, the
difmemberment was accidental, the fine of blood is in that cafe con-
fidered as the woman’s dower, and a proportion of it adequate to her
proper dower is remitted from her Akilas, and the remainder is re-
* In confequence of the offence being wilful, the fine for it would be due from the
woman herfelf, and not from her Akilas.