In retaliation
for maiming,
a fine is due*
i f it occafion
death.
the fine is due:—after, however the murderer recovering from the
wound, and not before-, for it is poffible that the wound may prove
mortal, in which cafe the murderer’s heir is entitled to take his
right *.
If a perfon be entitled to retaliation upon another with refpedt to
any part of the body, and ftrike off that part accordingly, and the
perfon upon whom retaliation is thus executed die in confequence the
perfon in queftion is liable for a fine of blood, according to Haneefa
T h e tw o difciples allege that he is not in any refpedt refponfible, fince
he has only taken what was his right, and it is impoffible to reftrid
difmemberment to the condition of fafety,— fm other words,' to re-
quire that it be executed fo as not to endanger the perfon who fuffers
difmemberment,) for i f fuch were the cafe, retaliation would be alto-
' gether prevented, it being impoffible always to avoid its proving fatal
The p e r fo r in queftion, therefore, Hands in the fame predicament
with an Imam, a cupper, or a phlebotomiji;— in other words, i f an
Imam execute retaliation by cutting off a limb, or a cupper-apply his
eupping-horn, or a phlebotomift ufe his lancet, by defire o f a patient,
and the wound fo occafioned prove fatal, Hill no fine is due; and fo
here likewife. T h e argument of Haneefa is that the perfon in queftion
has flam another wrongfully; becaufe his right was to difmember,
not to kill, but here he has killed. Now, fuch being the cafe, analogy
would fuggeft that retaliation is incurred by him, as having wilfully
and without right (lain another. Retaliation, however, is remitted
in this inftance, becaufe o f the doubt which here exifts; for
the perfon, in cutting off the limb, did not intend to deftroy life but
merely to take his right. A fine, therefore, is due from him. It is
otherwise with refpedt to the Imam, the cupper, or the phlebotomift,
for all thefe adt upon authority,— the Imam, in virtue of his office,
* T h e reply to the arguments o f the two difciples is omitted in the tranllation, as
being, for the moft part, merely a repetition o f what had gone before.
which requires him to perform fuch adts for the good government o f
the people,— and the cupper or phlebotomift, in virtue of orders from
and agreement with the perfon upon whom they perform their operations.
It is to be obferved, moreover, that the performance of any
thing ftridtly incumbent is not-reftridted to the defcription offafety,—
fuch, for inftance, as the fhooting o f an arrow" at ain enemy:— but in
the cafe in queftion there is nothing ftridtly incumbent-,— nay, forgive-
nefs is rather commendable, G od having laid, “ If ye remit re-
“ ta liat ion, it is a kindness.” T h e taking retaliation for the
hand, therefore, is a matter of indifference, in the fame manner as
hunting game; and confequently is reftridted to the condition of
fafety.
C H A P . IV .
Of Evidence in Cafes of Murder *
I f a perfon be flain, and leave two fons, one prefent f , and another
abfent, and he who is prefent eftablifh evidence to the fadt, and the
other afterwards appear, it is in this cafe requifite that he alfo eftablifh
evidence to the fadt, according to Haneefa, T h e two difciples, on
the contrary, maintain that there is no occafion for this. If, howhomicid116
tCTm 'S hCre t0 be underftood in a general fenfe, including every fpecies of
t In the city, or the court of the Kasue.
Evidence to
murder mult
be eftablilhed
by each heir
feparately,
and indépendant
o f
the other.