would be the proprietor of the atonement, not the majler. Thus,
for inftance, if a {lave, having been fold, be killed in the hands of
the feller before the purchafer obtains poffeffion, the contra ft of fale
{till continues in force; which evinces that the refponfibility is a re,
turn or compenfation for the worth; for otherwife the contract would
not continue, the continuance of that being, becaufe of the continuance
of the value, whether the original property remain, or only the
return ior i t ; and notwithftanding the original property, in fuch infiance,
no longer remain, yet {till the return for it does fo, whence
the fale continues, in confideration of the continuance of the return,
for the article fold, namely, the value th e r e o fw h e r e a s , if the refponfibility
were in confideration of the blood, the contraft of fale:
would be entirely diffolved, fince on this fupjpofition the value of the-
article fold does not remain in any fhape whatever. T h e flave m
queftion, therefore, where his value equals or exceeds the amount o£|
the fine for his blood, is eonfidered in the fame light: as-one whole:]
value falls {hort of the fine*";— or as an ufurped flave,. who, if he:
perifli in the ufurper’ s hands,' mull be accounted for at the rate of his, j
full value, whatever that may be. T h e arguments of Haneefa upon,
this point are twofold:— F ir st , the word of Cion has impofed the
fine for erroneous bloodftied unreftriaively, (that is, in a way whieh
comprehends [Mu/ulman\Jlaves, as, well as freemen ;) for the textcf
the K oran fays, “ W hosoever, k il l e th a bel iever, by mis-
« TAKE, the penalty o f it Jhall be the freeing of a believer,,
“ AND A FINE, to be paid TO. the h.eirs of the deceased.”-
A fine, therefore, is.due.; and as the fine is,a confideration for the:
blood, which, never exceeds ten thoufand dim s, that film.only is due,
in the fame manner as.holds in the cafe of a freeman.— Secondly,-in.
the flave two different-qualities are laid to exift;— one, the quality ot
humanity, underftood in a being endowed,with underftanding, reflection,
apprehenfion, and memory; and another,. the quality of. worth,,
* T h a t is to fay, his value mult be paid b y the murderer.
underflood
underftood in a fubjeft fit for the ufe and purpofes of the individual.—
In a flave, therefore, there are two modes or characters, the character
of humanity, and the charafter of worth*. Now, the former of thefe
is fuperior to the latter ; and it is a rule that where two characters or
modes occur together, difagreeing in their laws, regard muft be paid
to the fuperior character, not to the inferior. Here, moreover, it is
impoflible to pay attention to both characters; for the character of humanity
requires that the refponfibility be fixed to the amount of the
fine of blood, whereas the character of worth requires that it extend
to the whole value of the flave, to whatever amount;— and regard
muft be paid to the character of humanity in preference, as that is the
fuperior. With refpeCt to the cafe of ufurpation, adduced by Aboo
Toofaf and Shafei, it is of no we igh t; becaufe the refponfibility, in
that inftance, is in confideration of worth only, ufurpation holding
only with refpeCt to property. With refpeCt, moreover, to what
they fay concerning fale, that the contract of lale ftill continues,
“ becaufe of the continuance of the.return for the article fold, namely,
“ the value thereof,”— it is not admitted ; for as a contract of fale
endures even where the Have, who is the fubjeCt o f it, is wilfully
murdered in the hands of the feller, and before the' purchafer has obtained
poffeffion of him, notwithftanding retaliation be not a return
for worth,— fo likewife in a cafe of fine. With refpect to a flave whofe
value is Ihort of the fine, there li’kewife the recompence for m in is
due; namely, the fine. As, however, the amount o f the fine was
not fixed by the LAW-f-, it is therefore, in this inftance, eftimated by
* Arab. M ahea t.— W e have no word in our language precifelycorrefponding with it .
The tranflator (to avoid a paraphrafis) generally expreffes it by the term worth.— It is derived
from M a i [property,] and lignifies the quality o f being (or conftituting) property; and,
to underftand.this paffage, that fenfe mull: be annexed to it.
.+ T h e amount o f fines i s -not fixed by the K o r a n , but b y the Soma.— T h e reafon o f
the diftindion here is, that if it had been determined by the K o r a n , it would be.eonfidered
as abfolute, and therefore not tQ be fwerved from in any inftance.
the