is not lawful for the man to have connexion with the Have, as the
grounds of her claim are different, fiflce, looking to fale, it is right
e f property, and looking to marriage, it is the connubial right.—
S e co n d l y ; the emancipation precludes the confequence * ; and be-
caufe of the confequence being thus precluded, the wound remains independent
of its confequence, and the confequence occurs independent
of the wound, the cafe being the fame [on the flave’s afterwards dy-
ing] as if he had perilhed by the. vifitation of heaven;— whence retaliation
is prevented.— T h e arguments of the two Elders are that although
the two grounds of claim be contrary, yet the mafter has an
indifputed authority to exadt retaliation, that appertaining to him in
every view ; and the legal effedt of both grounds is moreover one and
the fame, namely, retaliation ;— thus the claimant, (namely, the
mafter,) the thing claimed, (namely, retaliation,) and the perfon
upon whom the claim is made (namely, the offender) are known and
afcertained ; and as the exacting of retaliation is therefore poflible in
this inftance, it muft be decreed accordingly.— T h e difference in the
grounds of claim, moreover, are not to be regarded in this inftance,
as it does not occafion any difference in the legal effedt.— It is otherwife
on the firft fuppofition + ; for there the claimant is unknown,— It is
alfo otherwife in the cafe of the female Have; becaufe there the legal
effedt differs according to the difference in the grounds of legality ; for
the right of property is different from the right of marriage in point of
legal effedt, the legality of connexion eftablilhed by a contradt of
marriage being a thing eflential to and involved in it, whereas the
fame legality eftablilhed by a right- o f property is not an eflential, but
merely follows as a dependant. With refpedt, alfo, to what is advanced
by Mohammed, that “ the emancipation precludes the confe-
* A rab. Sirrayet.— T h e definition o f this term has been given before. (S e e p. 344-)
T h e meaning o f the phrafe here is, that the emancipation precludes the legal effect o f the
flave’ s death taking place upon the offender.
f T h a t is,, fuppofing the freedman to have other heirs befides his emancipator.
quence,
quence,” it may be replied, that the emancipation precludes the
confequence only becaufe of its rendering the claimant doubtful and
unknown. Now that holds only in a cafe of mifadventure, not in a
cafe of malice. In other words, if a perfon cut off the hand of a Have
by mifadventure, and the difmemberment prove fatal after manumif-
fion, retaliation is not incurred, but a fine for the hand only, together
with the diminution occafioned in the flave’s value by the maiming
between that time and his emancipation, becaufe it is in this cafe
uncertain'who the claimant of the right is, a Have being incapable of
poflefling property; and therefore, looking to the time of the wound,
the mafter is the claimant of the right ;—whereas, if the time of the
death be regarded, the ftave is the claimant, as he is then free ;— and
regarding, alfo, the time of the wound, the value o f the Have is incurred
; but regarding the time of the death, the fine of blood is; incurred
as he is then free. T h e claimant, and the thing'claimed, are
therefore both uncertain in this cafe ;—and as an ignorance concerning;
the claimant alone prevents the confequence, it follows that an ignorance
concerning both the claimant and the thing to be claimed prevents
.the confequence, a fortiori. In a cafe of malice, on the contrary,
the legal effedt is retaliation ; and as a flave ftands, with refpedt
to his blood, in the original ftate of m a n , namely, freedom, he is
therefore entitled to retaliation ; but this is to be exadted by his emancipator,
as being the avenger of his blood ; and as the freedman [in
the inftance here fuppofed] leaves no other heirs befides his mafter,
the claimant of the right, therefore, is known and afcertained.— It
is to be obferved, that as, according to Mohammed, retaliation is prevented
in both cafes, a fine is due for the hand, together with the
diminution occafioned in the value of the flave on account .of the time
elapfed between the wound. and the emancipation, (as already mentioned,)
becaufe the wound was given during the mafter’s right of
property ;—and nothing beyond thofe is allowed. According to the
two JE/Jers, on the contrary, in the firft of thofe cafes only a fine’
G g g 2 for'