I f a member
perilh in consequence
o f a
partial injury,
retaliation is
not incurred,,
but fine.
both die; in which cafe retaliation is due for the firft, and a fine for
the fecond. T h e arguments in fupport of the dodtrine of Haneefa
upon this fubject are twofold.— F i r s t , the wound has communicated,
an additional confequence. Now the penalty to be inflicted for any
thing mult be the fame as-the thing itfelf: but that is here impoffible,
it not being in the power of men to inflidt a wound upon the head in
fuch a way as to be attended with the fame precife effedt as the wound
in the prefent inftance. A fine is therefore due for both injuries re-
fpedtively.— Secondly, the adt is undoubtedly one; and the fubjedts
of it are alfo one, in one fhape, as being conjundt. The apprehenfion
of mifadventure, therefore, with refpedt to the eyes, in the fecond
inftance, is extended alfo to the firft inftance,— that is, to the wound;
and -confequently occafions a remiflion of retaliation with refpedt to
that like wife. It is otherwife in the cafe of fhooting an arrow; for
there the wound [received by the firft perfon] cannot with propriety
be laid to have communicated an additional confequence*. and the fubjedts
are, moreover, totally diftindt and feparate. It is alfo otherwife
where a perfon cuts off the finger of another, and the knife flips, and
hitting another finger, cuts off that likewife; for in this cafe retaliation
is due for the firft finger, and a fine for the fecond, as they are
two different fubjedts.
I f a perfon ftrike ofFthe upper joint o f another’s finger, and the
reft of the finger, or the hand itfelf, wither in confequence, retaliation
is not due, nor any thing except the fine for the joint, and an ar-
bitratory atonement for the remainder. In the fame manner, if a
perfon break off a part of another’ s tooth, and the reft of the tooth
* T h e term b y which-this is exprefTed in the original [S irra y a t] will-not bear a literal
tranllation.— In its primitive lenfe it fignifies to pafs or penetrate, and alfo to communicate
(as a contagion or peftilence.) T h is ' expolition will fuffice to explain the meaning of the
phrafe.— W h e re it occurs with a relation to life the tranflator uniformly renders it “ p rffl
“ f a t a l"
turn
turn black, retaliation is not due, but he muft pay the fine for the
tooth. If, alfo, in either o f thole cafes, the injured perfon require
retaliation, offering to be fatisfied with ftriking off the correfpondent
upper joint of the offender’s finger, or a part of his tooth, and to remit
the remainder, it is not permitted, thofe acts not being proper
fubjedts of retaliation.
If a man ftrike off the finger o f another, and the next finger become
powerlefs in confequence, retaliation is not to be inflidted for
eitherj according to Haneefa. Mohammed and Z ijfer, on thé contrary,
maintain that retaliation js due for the firft finger, and a fine
for the fecond. T h e argumentsTon both fides have been already recited.
Jbn Simmaia reports, from Mohammed, that if a perfon give
another a wound upon the head, and deprive him of fight in confequence,
retaliation is to be inflidted for both the wound and the eye-
fight,— the offender, where his offence communicates an additional
confequence, being accounted a perpetrator with refpedt alfo to the
fecondary or occafional effect thus produced;— in the fame manner as
where a wound is attended with lófs of life; in which cafe the
wounder, being accounted a murderer, is liable to retaliation. In
the cafe in queftion, therefore, as the wound in the head is attended
with lofs of fight, the wounder is accounted the perpetrator, or immediate
occafion of fuch privation; and as fight is a fubjedt of retalia-4
tion, .retaliation by a deprival of fight muft therefore be inflidted. It
J| otherwife where a perfon ftrikes off another’s finger, and the next
finger becomes powerlefs in confequence ; for a paralytic affedtion cannot
occafion retaliation. From this report of Ibn Simmbia it appears
that, according to Mohammed, i f a wound extend, in its effedts, to
any thing for which retaliation is pradticable, it muft be inflidted, in
the fame manner as where a wound, unrightfully inflidted, is attended
with lofs of life. T h e reafon for the more commonly received
opinion aboye fet forth, (that retaliation is not inflidted for the eye-
fight, when occafioned by a wound on the head,)' is that the lofs of
V ol. IV . Y y fight,
Cafe o f an
injury to one
member oc-
cafioning the
loft o f another.