vided among
the remaining
heirs o f
both,-r-or redeemed,
at
his owner’s
di fere t ion.
granted a pardon, and ten thoufand to the two heirs of the perfoti
(lain by mifadventure;— for upon one of the heirs of the perfon flain
wilfully-pardoning the offence, retaliation is remitted, and his fellow-
heir remains entitled to a fine; and therefore the two heirs of the
■ perfon flain by mifadventure have a right to a complete fine, namely,
ten thoufand dirms, and the heir of the perfon wilfully flain, who
had not granted a pardon, has a right to a moiety of the complete fine,
namely, five thoufand dirms. If, on the other hand, the mafter prefer
making over the flave, he is to be divided among the heirs in three
portions, two going to the heirs of the perfon flain by mifadventure,
and one to the unforgiving heir of the perfon flain wilfully.—This 'is
according to Haneefa. T h e two difciples, on the contrary, maintain
that the flave is divided among the heirs in four parts, three fourths
.a-oing to the heirs of the perfon flain by mifadventure, and one fourth
to the unforgiving heir of the perfon flain wilfully. The divifion,
.therefore, according «to them, is to be determined by the litigation;
in other .words, in thedegree in which the right of any of the parties
attaches without litigation from the others, he receives a proportion;
and in the degree in which the litigation obtains, the divifion is made
equally.- Now, in the cafe here confidered, one moiety of the flave
is referved to the two heirs of the perfon flain by mifadventure, without
litigation on the part of any other perfon, and goes to them accordingly;
but with refpeft to the other moiety, there is a litigation
‘between the two heirs of the perfon flain by mifadventure, and the
unforgiving heir of the perfon flain wilfully; and therefore it is divided
equally between the one heir on the one part, and the twoheirs
on the other part. The argument of the two difciples, in fupport
o f this determination, is that the right of the two heirs of the perfon
flain wilfully is connefted with the whole of the flave’ s perfon ; but
upon one of them granting a pardon, his right becomes extindt, and
of courfe a moiety of the flave is difengaged, and the right of the two
.heirs of the perfon flain by mifadventure attaches to it, without litigation,
whence it goes to them; and there then remains the other
moiety,
moiety, with which is connected the right of the two heirs of the
perfon flain by mifadventure, and alfo o f the unforgiving heir of th e -
perfon flain w ilfully ;— and as this is equally divided among them,
the two former, therefore, get one half of fuch moiety, and the latter
the other half; and thus, of the whole, three fourths go to the
two heirs of the perfon flain by mifadventure, and one fourth to the-
unforgiving heir o f the perfon flain-wilfully; as above ftated. A c cording
to Haneefa, on the contrary, the flave is .divided among the
heirs (as- above ftated), in three portions, by the rule of fractional
arithmetic*; becaufe of their right being equally connedted with the
flave’ s perfon f ; — in the fame manner as where,a perfon dies infolvent
;_in which cafe, his eftate is divided among his creditors by thee
rule of fractions..
If a flave held in partnerflup by two perfons murder a manwhofe
Heirs are thofe two partners, and.one o f them pardon him, retaliation
is remitted, and the.blood of. the flain is of no account,, according to
Haneefa.— T h e two difciples maintain.that in this cafe the partner who
orants the pardon muft make, over a portion of his lhare (namely, a
quarter) to the other partner,, or elfe muft pay.him- a fourth of the
complete fine o f blood, as a redemptionary atonement— The reafons
they allege are, that a mafter. is entitled to execute retaliation upon his.
Affave, being-
held between
two men in
partnerihip,
and forgiven,
o f a murder
by one o f
them, the
blood Ihed la
o f no account*
* A rab . Z ir l-w a -a w l; literally, “ multiplication and excefs
+ T h e tranflator here omitsthe procejs, w hich has no place in the A ra hk verfion, and uri
f id teaches a moft circuitous mode o f p raftice for folving a very.plain queftion. A s , how ever,
it is fomewhat curigus, he conceives it advifeable not en tire ly to omit it .— “ N o w ;
“ the right o f the heirs o f the two perfons flain b y mifadventure is ten thoufand dirms, and -
“ that of the unforgiving heir o f the perfon flain-wilfully is five thoufand.— T h e p repofition,
« therefore, contains a- whole and an h a lf.— Hence we muft take, for the denominator
« the fmalleft number which admits o f fubdivifion; namely, two, b y which the fradhonal
“ number [being multiplied] .is refolved. into three [integral p a rts ;]— and the tw o heirs b y
“ mifadventure take in the proportion o f the whole, namely, two parts j and the unfor—
“ -giving heir takes in the proportion o f the half, namely, one part, ’
E f. f 2 . flave =