ever, the perfon was {lain by mifadventure, there is in that cafe no
occafion for a feoond eftablifhment of evidence, according to all our
doctors, any more than in the cafe of proving a debt due to the deceafed.
T h e argument of the two difciples, in the point where they
differ from Haneefa, is, that retaliation is eftablifhed to the heijs in
the manner o f an inheritance’,— in other words, the right to retaliation
is -firft eftablifhed in the anceftor * , and then devolves to his heirs,
in the fame manner as a debt; for as retaliation is a retribution for the
perfon-^, the right to it therefore refts with him to whom the perfon
belongs, namely, the murdered perfon, in the fame manner as the
fine, which belongs to the murdered in virtue of his right to retaliation
; whence it is that if the retaliation be converted into a property,
by the heirs compounding it for a fum of money, fuch property'is
confidered as belonging to the murdered, infomuch that his debts may
be difeharged therewith, and his bequeft alfo holds with refpeft to it;
and likewife, that retaliation is''entirely remitted by the deceafed
having forgiven the offence after he was wounded. Any one of the
heirs, therefore, is profecutor on behalf o f the others. T h e argument
of Haneefa is that retaliation is eftablifhed to the heirs merely by
fubfiitution, and not as an inheritance. Now by fubftitution is hereto
be underftood one perfon Handing in the place of another in perform-'
ing that other’s aft. Thus, in a cafe of bloodfhed, where it has been
wrongfully committed, the perfon flain is entitled to do the fame by
the flayer: but as he is incapacitated from this by death,, his heirs are
his fubftitutes for the execution of it ;— not that he has. any property
in that aft, which afterwards devolves to his heirs,— for retaliation is
not eftablifhed until after the deceafe of the murdered perfon, and a
defunft is incapable of having any property in retaliation, as it is an
* A rab . M aw ris, meaning the perfon from whom inheritance defeends. (See note in
V-ol. II. p. 70 5.)
f A rab . Za t, meaning the fiff,—the body as connefted with the foul,
p. 2 7 6 .)
(See note in
aB, and it is impoflible that any aft fhould proceed from the dead.—
The deceafed, therefore, has no property in the retaliation. It is
otherwife with refpeft to debts, or the fine of blood, as thefe are property,
and a defunft is capable of being a proprietor;— as where, for
inftance, a game-catcher lays his fnares, and then dies, and game is
found in the fnares after his deceafe,— in which cafe the game-catcher
is confidered as proprietor of the fame. Retaliation, therefore, being,
eftablifhed by fubfiitution, and not as an inheritance, no one of the
heirs can be litigant for the others;— and as the others ftand in need
of again eftablifhing their evidence, the abfent heir will therefore
be required* on making his appearance, to eftablifh evidence on
his part.
If a murderer adduce evidence to prove, again ft the prefont heir, -Retaliation 1*
that the abfent heir has remitted the retaliation, in this cafe the pre- ^“ murderer
fent heir is litigant, and the evidence thus adduced by the murderer adducinS
being credited, the right of retaliation ceafes accordingly. T h e mur- prove the re-
derer, moreover, is not in this cafe under any neceffity of producing T^nablnt
his evidence again upon the abfent heir appearing; for his plea here is heir-
that “ the right of the prefent heir to retaliation has been commuted
“ into a right to property,”— a plea which cannot be fubftantiated
but by proving the remiflion on the part of the abfentee. In fine,
the plea o f the defendant is here founded on the plea of the abfentee’s
remiflion; and as, in all fuch cafes, the party prefent is litigant for
the abfentee, the prefent heir is therefore litigant for the abfent heir
in this inftance.
If a Have held in pattnerfhip between two men be murdered, one
of the owners being prefent, and the other abfent, and the prefent
owner adduce evidence againft the murderer, in this cafe, upon the
abfentee appearing, he alfo is required to adduce evidence. If, alfo,
1 e murderer adduce evidence to prove that the abfentee has remitted
1 e retaliation, in this cafe the owner prefent is litigant, and the
3 murderer