which to advance a claim. It is otherwife with refpedt to the cartilaginous
part of a nofe or an ear; for the chief end of that is beauty,
which by the deprivation of it is completely deftroyed. It is to be ob-
ferved that the perfedtnefs of the tongue is known from fpeakiug, that
o f the yard by the proper ejedtion of urine, and that of the eye from
fuch figns as ferve to manifeft that the child fees objects with it. As
foon, therefore, as from thefe tokens the perfedtnefs of the. organs in
queftion is afcertained, the fame rules obtain with refpedt to them as
in the cafe of adults.
Retaliation I F a man, either wilfully or by mifadventure, give another a
cannot be m - . i l i . °
fliftedforany wound upon the head, and he be in confequence deprived of his rea-
thlUheadfof ^on’ or t^le whole of his hair, retaliation is not due upon the
anindeter- ftriker:— notin the cafe of mifadventure, evidently; nor.in the cafe
minate na- _ . _ . J
turej ot a wilful wound, becaufe equality, in a. cafe of this nature, cannot
be obferved in the infliction of the retaliation. A complete fine is
therefore due in either inftance, and the muldt for the wound|is
therein included;— in the inftance of lofs of reafon,— becaufe, is all
the faculties of the body are thereby rendered null, the cafe is therefore,
in effedt, the fame as where a perfon gives another a wound.
upon the head, and the wounded perfon dies,— in which inftance the
muldt for the cut is included in the fine,— and fo here likewife
and in the inftance of the lofs of the hair,— becaufe the mulct
for a wound upon the head is due folely on account of itJw*.
cafloning a defedt, by the deftruftion of a fa rt of the hair, (info-
much that i f the hair grow again, as it was before, the muldt is remitted
;) and as the complete fine is here due in confequence of the
lofs of all the hair, the muldt due for the wound is therein included,
as being the leafl of the two. T h e muldt is therefore included in the
complete fine due on account of the hair, which is the greatefl of the
tw o ; for it is a rule that where an offence is committed upon any one
member, and two injuries are thereby fuftained, and the muldt. for,the'
one injury is greater than for the other, the fmaller is included in the
greater;—as where, for inftance, a perfon cuts off the finger of
5 another,
another, and the whole hand is thereby rendered powerlefs; in
which cafe a fine fop the hand is due, including the fine for the
finger. -
I f a perfon wound another upon the head, and thereby deprive
him of fpeecb, fight, or hearing, in this cafe the muldt for the wound
id due, together with the complete fine. T h e reafon of this is,
that each of thofe privations is a feparate offeftce; and as the advantage
of each refpedtive organ is reftridted to that organ, each .
is, therefore, like a- feparate member, fuch as the hand and foot.—
It is otherwife with the reafoning faculty; that extending to and af-
fedting all the organs, as has been already explained. Aboo Yoofaf
maintains that the muldt for the wound is included in the fine, in
the cafe of a privation of hearing or ffeech, but not oi Jight •, becaufe,
as the power of hearing or fpeaking is, like the reafon, a
matter of a concealed nature, it is therefore fubjedt to the fame rule;
whereas the power of feeing, on the contrary, is evident, and not of
a concealed nature, and therefore bears no analogy to reafon in this
particular. T h e former opinion is approved.
I t is recorded, in the Jama Sagheer, as an opinion of Haneefa,
that if a man wilfully vvound another upon the head, and thereby
put out both his eyes, retaliation is not to be inflicted; and lawyers
have, moreover, delivered it as his opinion, that in this inftance
a fine is due for the eyes, and alfo the muldt for the wound.
The two difciples, on the contrary, hold that retaliation is due for
the wound, and a fine for the e yes; for as the adt took place
upon two different parts or fubjedts, it therefore amounts to two
feparate offences; nor does the apprehenfion of mifadventure with
Tefpedt to the eyes occafion a remiflion of retaliation for the wound;
ui the fame manner as where a perfon wilfully fhoots an arrow at
another, which paffing through him hits a fecond perfon, and they
both
but the mulft
for thewounc
is due, over
and above the
complete fine
where any-of
the fenfes or
faculties are
deftroyed in
confequence.
Ca feof a blow
on the head,
occafioning
the lofs o f
fight.