retaliation
for maiming
does not exempt
from
retaliation for
the perfon, in
cafe o f the
death o f the
maimed.
garded as a lequejl to them * ; for here'the marriage in recompence of
the difmemberment is a marriage in lieu of the confequent, namely,
the fine-, and as the fine, being itfelf property, is capable of confti-
tuting a dower, it is the dower accordingly;— but this only in the
proportion of the woman’ s proper dower. With refpedt to the remainder,
it is confidered as a bequeft to the woman’ s Akilas, which
they are competent to benefit by, as not having been themfelves concerned
in the bloodfhed. If, therefore, the amount do not exceed
one third o f the deceafed’s property, the whole is remitted to them;
or, if it exceed, they have to pay the difference to the heirs f .
I f Zeyd wilfully ftrike off the hand of Khalid, and fuffer retaliation,
and Khalid afterwards die in confequence o f the lofs of his hand
Zeyd is ftill liable to be put to death in retaliation, as he then appears
to have murdered Khdlid, who is eonfequently entitled to retaliation
for the perfon. The heir's of Khalid, therefore, may put Zeyd to
death, as the right of Khalid to retaliation for the perfon is not done
away by the difmemberment of the offender;— in the fame manner as
where a man, being entitled to execute upon another retaliation for
the perfon, takes a limb from that othfer;— in which cafe his.ri<*ht to
retaliation for the perfon is not annihilated; nor is any thin°- due for
the limb, as the whole perfon was forfeited, and the limb was only a
part of it;, and fb likewife in the prefeat inftance. Aboo Toofaf
* T h e reafon o f this diftimftion is that, in aedie'ntal offences, the fine falls upon the
M ila s, not upon the offender', whereas, in the cafe o f w ilfu l offences, the fine being always
confidered as a compromife for retaliation, fells upon the offender alon e, the M ia s
having no concern in ir.
t T o underftand the phrafeology which runs through this and the preceding example,
it is neceffary to recolledt that a d ow e r , like any other confederation, may be underftood
either by an aSlualpayment o f fomething to the woman, or b y the remiflion (on the part of
the hufband) o f fomething owing from the woman.— W h en , therefore, we fay, “ the fine
“ conftitutes the dower,” or “ retaliation conftitutes the dower;” nothing more is meant
than that the woman marries the man in confideration o f thofe being remitted to her.
alleges
alleges that upon cutting off the offender’s hand, the right to any
further retaliation ceafes, as the retaliation being executed in that
manner, the offender is difcharged from all further confequencps. T o
this however, it may be replied that the hand of the offender was
ftruck off only under the idea of that being the foie right; and that
therefore the offender is not difcharged from retaliation for the blood-
jh e f a,s the death of the wounded perfon had not then taken
place.
I f the heir of a murdered perfon cut off the hand of the murderer,
and remit any farther retaliation, either before or after the decree of
the magiftrate, authorizing the fame, he [the heir] owes a fine for
the hand, according to Haneefa. T h e two difciples, on the contrary,
maintain that nothing whatever is due; becaufe here the heir o f the
murdered perfon has taken what was his right,- and eonfequently is
not required to make any atonement; for he is entitled to deftroy the
perfon of the murderer in toto ; and as a limb is merely a dependant of
the perfon, it follows that he is .entitled to deftroy any particular limb.
He is therefore not required to make any atonement whatever,—
whether the difmembered murderer pardon him or otherwife,— or,
the, wound prove fatal or otherwife,—or, he firft ftrike off the hand and
then take the life, either before or after the wound is healed;— this
cafe being analogous to one where, retaliation for the hand being due,
the perfon who is to exaft it ftrft ftrlk.es off the fingers of the offender’s
hand, and then remits the retaliation upon the hand,— in which cafe
he is not refponfible.for.the fingers. T h e argument of our doftors is
that in this inftance the heir has taken what was not his right; for
killing was his right, not difmemberment. A fine is therefore due for
the hand of the murderer thus unjuftly ftruck off. Analogy, indeed,
would fuggeft that the murderer’ s heir is here .entitled to exadt retaliation
for the hand:— that, however, is remitted becaufe of a doubt;
for it was lawful for him to ftrike off the murderer’s hand as a dependant
of his perfon. Retaliation, therefore, being thus remitted,
S f a the
An heir executing
retaliation
for
murder, by
maiming,
without authority
from
the magiftrate,
is liable
to a fine*