Whoredom
committed
upon compuU
Jion does not
fubjeft to punishment.
O b j e c t io n .— The woman is alfo termed Zâneea*, as appears in
the Koran.
R e p l y .— The woman is termed Zâneea by a metonymical figure,
which fometimes ufes the aâtive participle for the paffive ; or it may
on this occafion be employed becaufe the woman is the primary caufe
of the adt of whoredom, by her admitting the man to the commiflioa
of it. Punilhment, with refpedt to a woman, therefore, depends upon
the circumftance of her admitting a man to commit the àdt of whoredom
with her; but the adt of a boy is not whoredom, as whoredom is
an adt proceeding from a perfon who has been called upon to refrain
from it, and the perpetrator of which is an offender, by his corn-
million of it ; and as the adt of a hoy is not of this nature, it follows
that punilhment is not incurred by his adt.
If a fovereign prince Ihould compel a man to commit whoredom
there is no punilhment incurred by that man.— Aboo Haneefa had held
a prior opinion, that the man is liable to punilhment, (and fuch is the
dodtrine of Ziffer)— becaufe a man cannot commit the adt of whoredom
unlefs the virile member be properly dillended, which diftention
is a token of defire on his part:— compulfion, therefore, cannot be
proved with relpedt to him. The reafon for the more recent opinion
is that the means of compulfion, (namely, the power of the fovereign, )
exifts both adtually and apparently ; and the diftention of the virile
member is no certain proof of defire, fince it fometimes occurs indépendant
of any operation of the mind, as in Jleep, for inftance ; this
circumftance, therefore, is of no weight in competition with a fadt
which admits of athial proof, namely, the compulfion. But if any
other perlon than the fovereign Ihould compel a man to commit
whoredom, the man thereby incurs punilhment according to Haneefa.
T h e two difciples have faid that no punilhment is incurred in this
cajfe, becaufe the compulfion which is the obftrudtion to the punilh-
* The fem. act. part, from Zirna.
ment
ment in the former cafes may alfo proceed from others than the fovereign:
but Haneefa signes that this fpecies of compulfion cannot be
fuppofed to proceed from any except the fo v e r e ig n becaufe no other
perfon is pofleffed of the means of fuch compulfion, fince the. fovereign
is enabled to repel it in all inferior perfons, as the fovereign
authority is inftituted by the law for the purpofe of repelling tyranny .
and alfo, becaufe all others ftand in awe of the fovereign, and hence
no fuch compulfion can proceed from them. It is to be remarked
that the learned in the law impute this difference of opinion between
Haneefa and the two difciples to the difference of the times in which
they lived,— for in the time of Haneefa others than the fovereign were
not poffèflèd of any power which it was not in the fovereign’ s power
to repel ; but in the time of the two difciples every petty ruler pof-
fefled a power independant of the fovereign, and hence the compulfion
of others than the fovereign afforded (in thofe .times)-a ground of
doubt fufficient to prevent punilhment.
I f a man make a confeflion four times, at four different appearances,
[before the Kazee\ “ that he has committed whoredom with
“ fuch a woman,” and the woman Ihould thereupon declare, “ that
“ he had married her,”— Or, if a woman Ihould thus make confeflion
that* “ fuch a man had committed whoredom with her,” and the man
Ihould plead that “ he had been already married to her,”— in this
cafe no punilhment falls upon either party, becaufe the plea of marriage
is poflibly true, and therefore çccafions a demur ; but the man
owes, the woman a dower, fince the enjoyment of the womah’s perfon
cannot be admitted gratuitoujly, as a woman’s perfon is an objedt
of refpedt.-, ,
I f a man commit whoredom with the female Have of another, to
fuch a degree as that the faid female Have dies, the man incurs two
penalties,— one, the punilhment of whoredom, and the other, the
.payment of the value of fuch (lave to her owner,— becaufe he has
Y ol. II. F here
Cafe o f one
of the parties
confefling
•whoredom,
and the other
pleading a
marriage.
Cafe of
whoredom
with the fe-
-male flave of
another, who
dies in confer
ence i