in an infant is definitive. Neither are they (as ’he alleges) required to
make expiation; becaufe that is performed to cover a crime ; and in
the prefent inftance there is no crime to be covered, as they are held
incapable of committing a crime.
S E C T I O N .
O f E mb r y o s in the W o m b .
A perfcn If a man ftrike a pregnant woman upon the belly, fo as to caufeher
f t r ik in g a to milcarry of either a male or female foetus, begotten free, a Ghoora1
t o occafion being a twentieth of the complete fine for a man, namely, five hundred
riage”(ofaa dirms, is due, upon a favourable conftruition. Analogy would ‘fuggeft
fre e b egotten j nothing whatever is due from the ftriker in this inftance; becaufe
a tw e n t ie th o f tjje l i v i n g exiftence of a foetus'is not a matter of certainty; and mere
the comp’ete 0 . . .
fine [a Ghor- probability is not an admiflible ground of claim. 1 he realon, however,
for a more favourable conftrudtion of the l aw in this particular is,.:
that the prophet has faid, “ A G horra is due fo r a foetus and by
a Ghorra is underftood a male or female {lave, of the value of five
hundred dirms.
o f which his T h e Akilas of the ftriker, in the above inftance, are to pay their
my^thcir'° Part of" the fine [the Ghorra\ according to our dodtors. Malik main-
part; tains that it is iolely due from the property of the ftriker ; becaufe it
* T h is is a technical term, expreffive o f a fine o f five hundred dirms;— derived fro01
the appellation generally given in Arabia to an infant male or female Have o f that value.
is paid in compenfation for a part of the body ; for a foetus is a part
of the mother; and a compenfation for a part of the body, like the
compenfation for a finger (for inftance,) is due from the property of
the offender. T h e arguments of our dodtors are twofold.— F i r s t , a
precept of the prophet, who once decreed a Ghorra to be paid by the
Akilas— S e c o n d l y , the Ghorra is a compenfation for the perfon, (of
the foetus,) not for a part of the body;— whence it is that the prophet
denominated it a fine.
T h e Ghorra is payable within a year. Shafei fays [that it' is payable
in three years; becaufe it is <i compenfation for the perfon, and
accordingly is diftributed among the heirs o f the foetus. T h e dr°-u-
ments of our dodtors upon this: point are twofold.— F ir s t , It is recorded,
in the traditions, that the prophet, upon a certain occafion,
decreed a Ghorra to be paid by the Akilas within the year.— Se c
o n d l y , the Ghorra is a compenfation for the perfon, confiderino- the
embryo as a feparate exiftence; but it is alfo a compenfation for a part
of the body, confidering the embryo as connected with the mother.
Now we pay attention to both confiderations; and accordingly, we
adjudge the inheritance: [of the fine among the embryo’ s heirs] on the
firjl confideration, and on the fecond confideration adjudge the term of
one year for the payment,— the compenfation for a part o f the body,
where it falls fhort of the complete fine, being invariably payable
within a year. It is otherwife with refpedt to parts or divifions o f the
fine; for any part thereof due from any perfon is payable in three
years *.
If a perfon ftrike a woman upon the belly, and fhe in conference
bring forth a living child which afterwards dies, a complete
* T h e G ha rri is not confidered merely as a proportion o f the fin e , but is a diftinift and
eparate fpeeies o f fine, impofed folely in the cafe o f embryos,
V ol, IV. z z
and it is payable
within
a year :
but i f fhe
produce a
liv in g child.
fine