Pu-nifoment is-
not incurred
by committing
whoredom
in a foreign
country.
Punifoment
may be inflicted
by the
chief magif-
trate within
his camp.
toAboo Haneefa,) and not burnt. Aboo Yoofaf holds that it (hould be
confumed with fire in both cafes, the perpetrator (where it belongs
to another perfon) remaining refponfible to the owner for the value
but yet the burning of it is not abfolutely incumbent; nor is it to be
burnt for any other reafon than as, by this means, all recollection of
fo vile a faff may be obliterated, and the perpetrator ihielded from the
difgraee which would attach to him in cafe of the animal remaining
alive.
. If a Mujfulman be guilty of whoredom in a 'foreign country, or itr
the territory o f the rebels, and afterwards returh into a Mujfulman ftate,.
punifoment is not to be inflidted upon him,on the plea that a man, in embracing
the Mujfulman faith, binds himfelf to all the obligations thereof*
wherever he may be.. The arguments-of our dodtors on this occasion
are twofold f i r s t , the prophet has- faid “ punifhmcnt is not to be
“ inflidted in a foreign land s e c o n d l y , the defign of the inftitu-
tion of punifoment is that it may operate as a prevention-or warning ;;
now the MuJJulman magiftrate has no authority in a foreign country,
wherefore if punifoment were inftituted upon, a perfon committing
whoredom in. a. foreign country, yet the inftitution would be ufelefs
for the ufe of the inftitution is that punifoment may be executed ;.
and as the magiftrate has no authority in a foreign country, the execution
is impoffible ; whence it appears that the eommiffion of whoredom
in a foreign country does not oceafion punifoment there : and i f
this perfon foould afterwards come from the foreign territory into a
Mujfulman ftate, punifoment cannot be executed upon, him, becaufe
as his whoredom did not oceafion punifoment at the time of its being
■ committed, it will not afterwards oceafion it.
T he perfon to whom the authority of inflidting punifoment officially
appertains, (fuch as the K hdff, for the time being, or the
governor of Egypt,) when he carries' forth his troops upon an expedition,
is at liberty toinflidt punifoment upon any psrlbn who may be
, guilty
vuilty of whoredom within his camp, fince the perpetrator of the
offence is under his immediate authority; but chiefs or commanders
of an inferior degree are not at liberty to inflidt punifoment upon per-
foiis cuilty of whoredom within their camp, becaufe they are not
invefted with authority to inflidt punifoment*.
If an alien come into a Mujfulman ftate under a protection, and
there commit whoredom with a Zimmeea, or female infidel fubjedt,—
or if a Zlmmee or male infidel fubjedt fo commit whoredom with a
female alien, punifoment is to be inflidted upon the infidelfubjeEl, (according
to Haneefa) but not upon the alien. This alfo is the opinion
of Mohammed with refpedt to an infidel fubjedt, where he is guilty of
whoredom with a female alien; but i f an alien be guilty of whoredom
with a female infidel fubjedt, in this cafe he holds that there is
no punifoment for either party. There is alfo an opinion recorded
from Aboo Toofaf to this effedt; but he afterwards delivered another
opinion, that punifoment is incurred by all the parties concerned,
both by the alien, and the female infidel fubjedt,— and alfo by the
male infidel fubjedt, and the female alien,— for he argues that an alien
under protedtion, during the time that he continues in a Mujfulman
territory, fubjedts himfelf to all the ordinances of the temporal, law,
in the fame manner as an infidel fubjedt does for life, whence it is
that punifoment for flander may be inflidted on an alien under protedtion,
and that he may alfo be put to death in retaliation : contrary
to punifoment for drinking wine, as in his belief the ufe of wine is
allowable. The argument of HaneefyAnd Mohammed is that a pro-
tedted alien does not come into a Mujfulman ftate as a r e f dent, but is
only brought there occafionally, from fome particular motive, fuch
as commerce, and the like, and therefore is not to be confidered as
* Meaning Hidiy which being a right of the law, is a thing of too much importance
to be committed to inferior perfons: but every perfon who acts as a commander or magiftrate
is entitled to inflict Tazeer, or diferetionary correction.
Cafe of
whoredom
committed
between infidel
fubjefts
and alienr.