Upon the evidence
being
diily given,
fentence o f
punifhmentis
paffed.
the charge, which is therefore inadmiffible; it may happen too, that
the fad! may have been committed under an erroneous conception of
the parties with refpedt to its legality, fuch as would occaflon remiffion
of punilhment, and fuch as neither the parties themfelves, nor the
evidences again!! them are aware of, (as in a cafe where a man has
connexion with the female flave of his fan) ; it is therefore requiflte
that the judge examine the evidence minutely with refpedt to all thefa
particulars, flnce forfte circumftance may appear, in the courfe of fuch
inveftigation, fufficient to exempt from punilhment.
A nd when the witneffes fhall thus have borne teflimony completely,
declaring that “ they have feen the parties in the very a£t of
“ carnal conjunction” (defcribing the fame), and the integrity of
fuch evidence is alfo known to the Kdzee from both an open and a.
fecret purgation, let him then pafs fentence ofpunijhment fo r whorer
dom, according to fuch evidence. The apparent probity of the witneffes
does not fuffice in the prefent cafe, but it is neceffary that the
magiftrate afcertain their probity, both by an open and a fecret purgation,
in fuch a manner, that (poffibly) fome circumftance may
appear fufficient to prevent the -punifhment, becaufe the prophet has
faid “ Seek a pretext to prevent punijhment according to your ability
contrary to all other cafes, in which the apparent integrity of
the witneffes is (according to Haneefa) held fufficient.. The
mode of open and fecret purgation is fully fet forth under the head
of Evidence.
M o h a m m e d has faid, in' the Mabfoot, that the Kdzee may im-
prifon the accufed, until he make a purgation of the witneffes, becaufe
the perfon againft whom the teflimony is given flands charged with
whoredom upon the evidence o f witnefles; and alfo, becaufe the prophet
once ordered a perfon charged with whoredom to be imprifoned:
contrary to a cafe of debt, fince a debtor cannot be imprifoned upon
a charge of debt exhibited againft him by witnefles, until their
probity
probity be fully proved. The nature o f this diftindtion fhall be treated
of at large in another place.'
■ T h e confe'ffion which eftablifhes whoredom is made by a perfon
of found mind and mature age acknowledging himfelf (or herfelf)
guilty of whoredom four times, at four different appearances, in the
prefence of the Kdzee, he [the Kdzee] declining to receive the confeffion,
and fending the perfon away the firft, fecond, and third time. T h e
maturity and fanity of the perfon confeffing are conditions, becaufe
the declaration of an infant or an idiot is not worthy of any credit, or
becaufe the acknowledgment of fuch :rs not fufficient to induce a
fentence of punifhment. The condition of the confeffion bein'* made
four times at four different appearances is agreeable to our dodtors.
According to Shafei, a Angle confeffion, in a cafe of whoredom, is
fufficient, becaufe he conflders the law to be the fame here as in all
other cafes, the confeffion or acknowledgment of any circumftance
being the means of difcloflng or difcovering that which is fo con-
fefled or acknowledged; and a Angle confeffion is fu lly adequate to
this purpofe, a repetition being o f no manner o f ufe, flnce the dif-
clofure or difcovery is not in any degree increafed or ampliAed by i t «
contrary to plurality of witnefles, as the abundance of witneffes'is a
means of removing all doubt with refpedt to their veracity, and of
affording fuller fatisfaction to the mind;, whereas, by the repetition
of the declaration of a Jingle perfon, (as in cafe of confeffion,) no fuch
additional fatisfadtion is obtained. The arguments of our dodtors in
oppofltioh to what is here advanced by Shafei are twofold : f i r s t , The
cafe of Adaaz, on whom the prophet would not decree any punifhment
until, he fhould have made confeffion of his -offence four different
times at four different appearances, where it is to be concluded
that if a Angle'confeffion had fufficed, and it had been proper to
proceed to punifhment, upon the force of it alone, the prophet would
not have delayed to inflidt it until the confeffion fhould be four times
jepeated as above;— s e c o n d l y , as in evidence to whoredom four
witnefles-
Confeffion
mull be repeated
four
different
times,