worth, in the members, is of prior confideration. As, therefore,
'worth is regarded in the members of the body, as well as in the'per-
ion, and, in the cafe in queftion, the perfon alfo is deftroyed in fome
degree, (for one of the bodily faculties has been totally deftroyed,)
and the refponfibility is (confequently) to the amount of the complete
value, it is requifite that the offender become proprietor of the body
of the flave, in order that he may not be iubjetfted to injury, and that
an equality may be eftablifhed. It is otherwife where a perfon puts
out both the eyes of a freeman; becaufe a freeman does not poffefs
the quality of worth * . It is alfo otherwife where_a perfon puts out
the eyes of a Modabbir ; becaufe a flave of that defcription is incapable
of pafling from the property of one perfon to that of another. It is
likewife different where a perfon ftrikes off one hand of a Have, .and
puts out one of his eyes; for in this cafe no one faculty is completely
deftroyed.) T h e argument of the two difciples is, that as. the quality
of worth exifts in the flave, and as the fituation to which the flave
is reduced admits of two different conftrudtions,— a deftrudtion of the
perfon ■ (•, or a deftrudtion of the members,— it is therefore requifite
that the mafter have it at his option either to deliver over the flave,
and take the full value, on the former of thefe conftrudtions; or, on
the latter conftrudtion, to keep the flave, and take a compenfatS
for the damage he has fuftained | ; as in all other cafes of property;—
this being analogous to where a perfon tears another’ s robe to pieces, \
in which cafe the owner of the robe has it at his option either to make
over the robe and take the value, or to retain the robe and take a com-
penfation for the damage. T h e argument of Haneefa is that, although
its members, o w in g to th e careleffriefs o r in cau tiou fn efs o f others fo r i f th e members were
n o t held e q u iv a len t to p ro p e r ty , (in o th e r w o rd s , i f no fine w e r e impofed fo r injuries to
th em ,) th e bo d y ( o f w h ic h the m em b e r s a re a p a r t) w o u ld n o t b e e ffe c tu a lly protected.
* I n o ther w o rd s , “ does not pojjefs the capacity of being property.”
t B e c a u le a c om p le te d eftruCtion o f on e o f the fa cu ltie s is a c c o u n ted a deftruCtion of
th e whole man. .
worth be regarded both in the perfon and in the members of the body,
ftill the character o f humanit y alfo exifts in the perfon and members
of a 'flave, and has not been totally extinguilhed by his bondage.
Now, it is to be obferved that one of the rules of human it y is, that
the penalty incurred by an offence be not divided between the perfon
and the member deftroyed, but oppofed to the latter alone; and (con-
fequently) that the property of the body * be not transferred, (as
where, for inftance, a perfon puts out both the eyes of a freeman ;)
and that therefore the mafter is to take the whole value in compenfa-
tion for the thing deftroyed, the body remaining as; it was ;— andr
on the contrary, one of the rules of worth is, that the compenfation
for an offence be divided between the whole perfon and the particular
member deftroyed ; and that therefore the mafter is to take the defedft
occafioned in the value, as a fatisfadlion for the member deftroyed,
at the fame time keeping the body \Jufla\ as before. W e therefore
(fays Haneefa) pay attention to both thefe charaders; ; and accordingly,
looking to the character of h uman it y , we determine that the
compenfation is not divided (as above,)— for if we were to fay that
the mafter is to take the difference occafioned in the value, and retain
the body [ Juffa,] it would induce a total negledt of the chara&er of
humanity, and would caufe the character o f worth alone to be regarded,
(as is determined by the two difciples ; )— and looking, on the
other hand, to the. character of worth, we determine that the mafter
is not at liberty to take the whole of the value, and .alfo retain the
perfon of the flave, (as is determined by Shafei,) for in this cafe a regard
is paid to humanity alone, and the regard to worth is altogether
loft.
* A r a b . JuJJa.— I t is defined, \>y th e Arabian le x ic o g r a p h e r s , tc the figure o f a man”
meaning (pe rhap s ) a man independant o f h is q u a litie s o r fa c u lt ie s ; and it th e re fo re applies
to a mutilated as w e ll as to a complete b o d y ,— w h en c e th e ufe o f i t in th is pla ce .