3J6 F I N E S. Book L,
be a male, or the tenth if it be a female, Aboo Toofafi maintains that
the ftriker is refponfible for any damage which the mother may have
fuftained, in the fame manner as holds in the cafe of animals,—the
rel'ponfibility for a Have being (according to his tenets) a refponfibility
for property, as fhall be prefently explained.
If a perfon ftrike a pregnant female Have upon the belly, and her
mailer afterwards emancipate “ whatever may be in her womb,” and
Ihe then mifcarry of a living child, which Ihortly after dies, the value
of it, as a living child, is due, and not the fine, notwithllanding it
died after manumiffion; for the offender is accounted to have killed
the child by a blow given to the mother at a time when it was Hill
a Have.
Expiation is E x p i a t i o n is not due for an offence committed upon an embryos
for the de-ed Shafei maintains that expiation is due in this inftance; for an embryo
firuftion o f ;Sj jn one view, a perfonal en t ity * ; and as, in the cafe of a perfonal
aaem ryo. entjt^ js moq probable, an expiation mull therefore be performed,
out of caution. T h e argument of our doctors is that expiation is a
fort of penal infliction, as it has been ordained for the purpofe of determent.
Now determent applies folely to the perfect man f , not to
any other fubjedt; and an embryo is not a perfect man, for i f it were
fo, a complete fine would be due. Our dodtors, however, remark
that if the ftriker be defirous of performing expiation, it is lawful;
for as he has been guilty of a prohibited adt, it is confequently moft
laudable that he perform expiation and intreat forgivenefs. It is to be
jobferved that a foetus not yet per fed ly formed is the fame as a perfect
embryo with refpedt to all the rules concerning embryos;—becaufe the
* Arab . Z a l__ L ite ra lly , a f e l f meaning, a diftinct and feparate being. The
Eng lip language does not afford any term precifely correfponding with i t ,— (F o r a further
explanation o f rt, fee the preceding book, p. 270.)
f Arab. Z d t K am il; literally, a p erfeft f e lf or perfon*
faying
F I N E ~S.
faying of the prophet, before quoted upon this fubjedt, is unreftric-
tively exprefled ; and alfo becaufe, as an imperfedt foetus is the fame
as a born child, with refped to conftituting a female Have Am-Walld,
the termination of E dit, and fo forth, it is confequently the fame
with refpedt to the law in queftion. Befides, from the inftant of the
frit formation of the fcetus it becomes diftinguilhed from the body of
the mother, and is therefore a diftindt perfon.
357
C H A P . 11.
Of Nuifances placed in the Highway.
I f any perfon conftrud a bath, or fet out a water-fpout, or eredt a
Wall, or fet out timbers from his wall to build upon, or fet up a (hop
or booth,—in the public road, every other perfon is at liberty, however
mean and humble his condition, to pull down the fame, and remove
i t ; becaufe all people are entitled to a free paflage along fuch a
road for themfelves and their cattle; and the cafe is therefore the lame
as where a ftranger eredts a building upon a partnerlhip property; in
which inftance any one of the partners is at liberty to remove fuch
building; and fo here likewife the removal is lawful to all, as all are
alike partners in the rights of the road. It is lawful, however, for
the perfon in queftion, in all the above cafes, to make ufe of the bath,
fountain, or fo forth, where they are no way injurious to the community
; for as he has the right (in common with others) o f palling
and
Buildings or
timbers
placed in or
projecting
ever the highway
may be
removed b y
any perfon
whatever.