merits as are purely a right of G od, is vitiated and rendered void b y
fuch' a delay in the production of it as amounts to I ’akddim: but with
Shafei it is not rendered void, for he confiders thofe punifhments as a
right of the individual, and fuppofes evidence under this circumftance
to be the fame as confeflion inducing punifhment; that is to fay, as
diftance of time \fifakadirri\ does not affeft the validity of confeflion,
inducing adiftant punifliment, fo in the fame manner diftance of time
does not forbid the reception of evidence refpefting the rights of the
individual, becaufe it is apparent that the evidences fpeak tru ly ; and
the fame reafon holds m fuch punifhments as are purely a right of
!)- The argument of our doctors is that a witnefs in a penal
caufe has two things at his option, both equally laudable; the fir f,
evidence to an offence committed againft the laws the Jecond, the
veiling and concealment of infirmity:— now if it be admitted that the.
delay in giving in the evidence arofe from the charitable motive laft
mentioned, it follows that any fubfequent evidence could only arife
from motives of malice, or of priyate intereft, exciting the witnefs
thereto, in which cafe the witnefs-incurs _a fufpenfion deftruftive ©f
the validity of his evidence: if, on the other hand, the delay fhould
not have arifen from a wifh to cover infirmity, the perfon giving evidence
after fuch delay muft be held unworthy of attention, as having
for fb long a time neglefted that which was incumbent upon him,
namely, the giving o f evidence:— from all which it follows that, after
fuch a lapfe of time as amounts to I ’akadim, the witneffes are clearly
liable to fufpicion, either from their falfity, or their unworthinefs; and
this fufpicion impugns the credibility of their teftimony. This cafe
is contrary to a cafe of confejjion, as men do not bear malice againft
them/elves; and punifhment for whoredom, or wine-drinkino-, or
theft, are purely a right of God, whence the retraftation of a perfon
who makes a confeflion inducing fuch punifhments is approved; and
for this reafon, diftance of time in thofe inftances forbids the reception
of evidence: but punifhment for flander is a right of the individual,
as by it the fcandal is removed from the perfon. accufed hy the
4 flanderer;
flanderer; (whence the retraftation of a perfon acknowledging his
having flarid'ered another is not admitted ;)— and diftance of time, in
a cafe which regards the rights of the individual, does not impugn the
credibility of the evidence, as- the witneffes here do not fall under,
any fufpicion of finifter motives from delay in their teftimony, fince
the claim of the plaintiff is- conditional to> the admiflion of evidence
concerning the rights of the individual,, and therefore their delay in
giving evidence is to be attributed to the plaintiff not having called
for it. All this is contrary to a cafe of punifhment for theft, in which
the evidence of witneffes is invalidated by delay, becaufe the witneffes,
by their delay in bearing teftimony, become fubjeft to fufpicion of
finifter motives, as here the claim is not a condition of punifhment,
fince the punifhment is purely a right of God, the claim being a
condition only in matters of property ; and alfo, becaufe theft is
chiefly committed during the night, at a time when the owner of the
property is afleep and unwatchful, wherefore ft is-(incumbent upon
the witneffes to apprife the proprietor of the theft, and to bear teftimony
to it; but as, in a cafe of diftance of time, or fakadim, thev
have not fo borne evidence, they become criminal, and unworthy of
credit from their negleft.
T akadim, or difiance o f time, as it prohibits the admiflion of evidence
in the firft inftance, fo it prohibits (according to our doftors)
the infliction of punifhment after the decree of the Kazee: if, therefore,
the eonv-ifted perfon were to abfcond, after having received a
part of his punifhment, and, after the lapfe of a period, fufficient to
conftitute T'akddim, be taken and brought back, the remainder of the
correftion cannot then be inflifted upon him,— becaufe the infliftion
of the whole punifhment is included in the Kdzee’s. decree; and a part
of it ftands in the fame predicament with the whole; and as the
Kazee,. becaufe of diftance of time, could not decree punifhment, fo
.neither can he, in the fame circumftance,. decree the infliftion of the
remainder of the punifhment..
Belay alfo
prevents pu*
nifoment, after
the Ka-
zee’s decree
of it.
T herf,