or who goes
Hind.
The fove-
rcign is not
punishable,
but is refpon-
fible for property,
and
liable to retaliation.
here committed two offences, whoredom and murder, and hence the
law is to be carried into execution with refpeft to both. It is recorded
from Aboo Toofaf that punilhment is not incurred by the man, becaufe
the obligation of refponfibility, which lies upon: him, is a caufe of his
property in the Have ; and the occurrence of a caule of property, before
punilhment has taken place, prevents the infliction of it, (as
where, a thief, for inftance, purchafes the property ftolen of the
proprietor before his hand is- ftruck off,) and is the lame as if a man
were firft to commit whoredom with a female Have, and then to
purchafe her of her matter, in which cafe he incurs punilhment, according
to Haneefa, but not according to Aboo Toofaf, and fo in this
cafe likewife. Haneefa and Mohammed fay that the relponlibility, in
this cafe, is a relponlibility for murder, (in the manner of the Deejyat,
or fine o f blood,} which does not occalion a right of property [over
the fa in .)
If a man commit whoredom with the female Have of another, to
fuch a degree that Ihe lofes her fight, he owes the price of the faid
Have to her owner, and punilhment drops, becaufe the Have, by the
man being thus relponfible for her value, becomes his property* and
lhe is Hill actually exifting, wherefore the circumltance of his thus
obtaining a property in her occafions a demur fufficient to prevent the
punilhment.
If a fupreme ruler (fuch as the Khdlif, for the time being) com-'
mit any offence punilhable by law, fuch as whoredom, theft, or
drunkennefs, he is not fubjeft to any punilhment, (but yet if he commit
murder he is fubjeft to the law of retaliation, and he is alfo accountable
in matters of property,)— becaufe punifhment is a right of
S od, the infliftion of which is committed to the Khdlif [or other
fupreme magiftrate,] and to none elfe; and he cannot inflift punilhment
upon himfelf, as in this there is no advantage, becaufe the good
propofed in punilhment is that it may operate as a warning to deter
mankind
mankind from fm, and this is not obtained by a perfon’s infli&ing
punilhment upon himfelf: contrary to the rights of the individual,
fuch as the laws ^retaliation, and of property, the penalties of which
may be exadted of the Khdlif, as the claimant of right may obtain
latisfadtion either by the K h d lif empowering him to exadt his right
from himfelf, or by the claimant appealing for aliiftance to the ,col-
ledtive body of the Muffulmans. And punilhment for Hander, (although
it be in feme lhape a right of the individual,') is fubjedt to the
fame rule with other punilhments which are a right of God, as the
learned have declared that in the punilhment for Hander the right of
•God is chiefly confidered.
C H A P . III.
Of Evidence in Whoredom, and of Retraction therefrom,
I f witnefles bear evidence at a diflant period * [after the perpetration Delay in
of the alleged offence,] where there had exifted no obftrudtion (fuch I f '
as their diftance from the magiftrate, and lb forth,) their teftimony V"
is not to be credited, except in a cafe offlander. It is recorded in the except in
Jama Sagheer,— “ I f witnefles bear evidence againft any perfon, with jUndif.
“ relpedt to theft, or wine-drinking, or whoredom, after a certain pe-
“ riod of time lhall h^ve elapfed, fuch teftimony is not to be received;
“ but yet the perfon lb accufed of theft is relponfible for the value of
“ the goods alleged to have been ftolen.” The principle upon which
this cafe proceeds is, that all evidence, with refpebi to fuch punilh-
* Arab. M oatkidim : this is the participle from Takddim; by which is underftood fuch
a diftance o f time as fuffices to prevent punilhment. It operates in a w ay fomewhat iimilar
t o our Jiatutary limitationsments