394 F I N E S . B o o k L .
C a fe o f a
m a iler , who -
h a v in g committed
a w ilfu
l offence,
compounds it
b y a making
ove r his flave
to the offended
pa r ty .
courfe.— It is otherwife where the offended perfon emancipates the
flave ; becaufe his emancipating him evinces his defign to be a confirmation
o f the comfofition; and the compofition cannot bt confirmed',
unlefs it extend, not only to the offence itfelf, but alfo to every con.
fequence of i t ;— whence it is that i f the offended perfon were exi
prefsly to declare that he receives “ this flave in compofition for the
“ offence, and for every confequence which may arife from it,” and
the' mailer affent thereto, the compofition is confirmed.— In. the cafe
in queftion, moreover, the mailer .is affenting, becaufe, where he
willingly makes over the flave as a cqmpenfation for the difmember-
ment, which is the jmailer injury, it follows that he is willing to part
with him as a compenfation for the lofs o f life-, which is the greater injury,
a fortiori.— Upon, the offended perfon, therefore, emancipating
the Have,, the compofition implicated in the, manumitiion. is con.
firmed; and this being a fecond compofition-, entered into de novot,
the compofition accepted at the firft is null.— Where, on the contrary,,
he does not emancipate the Have, no fecond- compofition-exills;-but
the firlt compofition is void;, and confequently, the Have is rellored
to the mailer; and the avengers of the offence ar.e left at liberty either
to put him., to death, or to forgive'him. I t is mentioned in fome
copies o fth efam a Sagheer,. that if a perfon wilfully cut off,another’s
hand, and then.compound the matter with the difmembered perfon by
making over to him his flave,—and: the difmembered perfon emancipate
the Have, and then die of the wound, the. making over of the
Have is confidered, as a compofition in full for the offence; whereas, if
the difmembered perfon .had- not emancipated , the Have, the heirs of
the deceafed mull return the flave to his mailer, and are then defired
either to put him [the. mailer] to death,., or. to forgive him. It is to
he obferved, however, that a- difficulty arifes concerning the deter,
mination in this inftance ; for, it has. been already laid, that “ if a
“ perfon,wilfully cut off the hand of another, and the: wounded per-
“ fon forgive the difmemberment, and afterwards die, retaliation , is
“ not. to be inflicted on the perfon who gave the wound;’ ’ whereas,
in
C h a p . T V . F I N E S . 39
in the inllance now under confideration, retaliation is declared to be
incurred.— [T o reconcile this apparent inconfillency,] fome fay that
the remilfion of retaliation, in a cafe of forgivenefs, (as here alluded
to,) proceeds upon a favourable conftru&ion of the l a w ; and that
what is mentioned iii the prefent inllance (implying that the offender
is-llill liable to retaliation) proceeds upon analogy ;— whence there is,
in reality, no contradiction.— Others, again, fay that there is an efi-
fential difference between the cafes; for the forgivenefs of the difmemberment
is valid and effedual in appearance, as, the wounded
perfon was entitled only to cut off the hand of the offender. T h e
forgivenefs is therefore, in appearance, complete; and although,
upon the wound proving fatal, the pardon becomes . void in, effect, yet
it Hill continues in reality, (that is, upon the fa ce of the matter;) and
its exillence in this degree fuffices to prevent retaliation.— In a cafe o f
compofition, on the contrary, the compofition does not do away the
offence, hut is rather a means of confirming it, the offended [wounded]
perfon having agreed to a compofition in property, and thus accepted
a confideration for the injury he has received ; and as the offence
is not done away, and the confideration for it is returned, it
follows that the compofition does not prevent retaliation bein°- inflicted.
This is where the Have is not emancipated;— for where he is
emancipated, the cafe is fubjeft to the rules before Hated. '
I f a licenfed Have, involved in debt to the amount o f one thoufand a mafier
dirms, kill a man, and his mailer aftervyards emancipate him without emancipat-
knowing of the murder, he is liable to pay the value o f the Have twice, fe^dingflave,
once to the creditors, and once to the heirs of the {lain ; for he has dT^nlble
invaded two different rights,— the right o f the heirs, (which is, that “ PaV h!s
the flave be made over to them,)— and the right o f the creditors, — » t h e cS-
(which is, that the Have be fold for payment of his debts ;)— and as th e a v e n g e r °
he would be refponfible for the whole value, from invading either of
thefe rights where they occur feparately, he is in the fame manner refponfible
for each where they occur jointly.
E e e 2 O b j e c t i o n .