Oi theft.
O f retaliation.
and the freeing of a captive : but i f a man be not able to do this,
he is to foil two months together, by way of penance \ The tine
for a man’s blood is let in the Sonna at an hundred camels2 ; and is
to be didributed among the relations of the deceafed, according to
the law's of inheritances : but it mud be oblerved, that tho’ the
perion flain be a MoJIem, yet if he be of a nation or party at enmity,
or not in confederacy with thole to whom the flayer belongs,
he is not then bound to pay any fine at a ll; the redeeming a captive
being, in luch cafe, declared a fufficient penalty h I imagine that Mohammed,
by thefe regulations, laid fo heavy a punilhmenc on involuntary
manflaughter, not only to make people beware incurring the
fame, but alio to humour, in fome degree, the revengeful temper of his
countrymen, which might be with difficulty, i f at all, prevailed on
to accept a lighter fatisfadion. Among the Jews, who feem to have
been no lefs add idled to revenge than their neighbours, the man-
flayer who had efcaped to a city of refuge was obliged to keep him-
felf within that city, and to abide there till the death of the per-
fon who was high prieft at the time the fad: was committed, that
his abfence and time might cool the patfion and mitigate the re-
fentment of the friends of the deceafed : but if he quitted his afy-
lum before that time, the revenger of blood, if he found him,
might kill him without guilt4; nor could any fatisfadion be made
for the flayer to return home before the prefcribed time .
Theft is ordered to be punifhed by cutting off the offending part,
the hand 6; which, at firft fight, deems juft enough : but the law of
Jufitnian, forbidding a thief to be maimed 7, is more reafonable;
becaufe dealing being generally the effed of indigence, to cut off
that limb would be to deprive him of the means ;of getting his livelihood
in an honed manner 8. The Sonna forbids the infliding of
this punilhment, unlefs the thing dolen be ."of ar certain fvalue. I
have mentioned in another place the further penalties,which thofe
incur who continue to deal, and of thofe who rob or alfault; jpeo-
ple on the road ».
As to injuries done to men in their perfons, the law. of retaliation,
which was ordained by the law of 'Mejes™, is alfo approved by
1 Kor. chap. 4. p. 72. 2 See the notes to chap; 37. p. 369. *1 ? Kor. chap.- 4. p; 72.
* See Numb. xxxv. 26, 27, 28. * Ibid. ver. 32. • 6 Koran, chap. 5. p. 87. ‘ 7 Novell.
134. c. 13. 8 V. Pufendoif, de Jure nat. & gent. 1. 8. c. 3. §. 26. 9 See the notes to
chap. 5. p. 87. 10 Ex id. xxi. 24, &c. Eevit. xxiv. 20. Deut. xix. z u
the Kordn 1 i but this law, which feems to have been allowed by
Mohammed, to his Arabians for the fame reafons as it was to the
jews, viz. to prevent particular revenges, to which both nations
were excreamly addifted *, being neither flridly jud, nor pradicable
in many cafés; is feldbm put in éxecution, the punifliment being
generally turned into a muld or fine, which is paid to the party injured
t Or father Mohammed defigned the words of the Koran relating
thereto fliould be underdood in the fame manner as thofe of the
Pentateuch' mod probably ought to be; that is, not of an adual retaliation,
according to the drid literal meaning, but of a retribution
proportionable to the injury; for a criminal had not his eyes put
out, nor was a man mutilated, according to the law of Mofes, which,
befides; condemned thofe who had wounded any perfon, where death
did not enfue, to pay a fine only4; the expreffion eye fo r eye, and
tooth for tooth being only a proverbial manner of fpeaking, the fenfe
whereof amounts to this, That every one Jhall be punijhed by the
judges, according to the heinoufnefs o f the fa£i s. 1
In injuries and crimes -of an inferior nature, where no particular Ofthepu-
punifliment is provided by the Koran, and where a pecuniary com- 0f leircr
penfation will not do, the Mohammedans, according to the pradice of crimes,
the Jëtos in the like cafe 6, have recourfe to fripes or drubbing, the
mod common chadifement ufed in the ead at this day, as well as
formerly ; the cudgel, which for its virtue and efficacy in keeping
their people in good order, and within the bounds of duty, they
fay came down from heaven, being the infirmaient wherewith the
judge’s fentence is generally executed 7.
Notwitbdanding the Koran is by the Mohammedans in general re- Ths aeci-
garded as the fundamental part of their civil law, and the dédiions fions of
of the Sonna, among the Turks, and of the Imams, among thofe of
the Perf an fed, with the explications of their feveral dodors, are waysfol-
ufually followed in judicial determinations, yét the fecular tribunals M g g f
do not think themfelves bound to obferve the fame in all-cafes, but iar tribu-
frequently give judgment againd thofe decifions, which are not al- nais,
ways confonant to equity and reafon; and therefore didindion is to
be made between the written civil law, as adminidered in the ecole-
fiaflical courts, and the law of nature or common law (if I may fo
1 Chap. 5. p. 88,. 89. 2 V. Grotium, de Jure belli & pacis, 1. i,. .c. 2. 8. 3 V. Chardin,
T. 2 p. 299. The talk, likewife eftablifhed among the old Romans by the laws of the
twelve tables, was not to be infilled, unlefs the delirquent could not agree with the perfon injured.
V. A. Gell. No£t. Attic. 1. 20. c. 1. & Feftum, in voce Talk. 4 See Exod. xxi. 1,8,
19» and 22. I Barbeyrac, in Grot, ubi fupra. V. Cleric, in Exod. xxi. 24, & Deut. xix. 21.
6 See Deut. xxv. 2, 3. 7 V. Grelot, Voy. de Confiant, p. 220, & Chardin, ubi fupra, p. 302.